Post details: NJ holds that search incident can occur for a citable offense

06/01/07

Permalink 12:39:52 pm, by fourth, 660 words, 1056 views   English (US)
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NJ holds that search incident can occur for a citable offense

NJ holds, recognizing contrary authority, that there is no constitutional reason to justify a rule that limits search incident to custodial offenses. They can occur on citable offenses, too. This is an interesting opinion, decided under the Fourth Amendment and the state constitution, leaving open SCOTUS review. State v. Daniels, 393 N.J. Super. 476, 924 A.2d 582 (2007):

It is true that other states have limited searches incident to arrest to Terry-type frisks, State v. Paul T., 1999 NMSC 37, 128 N.M. 360, 993 P.2d 74, 78-79 (N.M. 1999) (violation of juvenile curfew ordinance); People v. Maher, 17 Cal. 3d 196, 550 P.2d 1044, 130 Cal. Rptr. 508 (Cal. 1976) (arrest for public intoxication); Hawaii v. Rosborough, 62 Haw. 238, 62 Haw. 689, 615 P.2d 84 (Haw. 1980) (arrest for marijuana possession); see also Middleton v. State, 577 P.2d 1050, 1055 (Alas. 1978). Others, however, have adopted the more expansive position espoused herein. State v. Florance, 270 Ore. 169, 527 P.2d 1202 (Ore. 1974) (arrest for menacing an officer); Hughes v. State, 1974 OK CR 98, 522 P.2d 1331 (Okla. App. 1974) (arrest for reckless driving and driving without valid license); People v. Weintraub, 35 N.Y.2d 351, 320 N.E.2d 636, 361 N.Y.S.2d 897 (N.Y. 1974) (arrest for criminal trespass).

The only question is whether the very minor nature of this offense, being the lowest on the scale of violations covered by the Code, should invoke a different rule. We think not. It would simply be too impracticable to differentiate the scope of a search incident to arrest depending on the degree of the violation, other than motor vehicle offenses or, possibly, municipal ordinance violations. Cf. State v. Hurtado, 219 N.J. Super. 12, 23-28, 529 A.2d 1000 (App. Div. 1987) (Skillman, J.A.D., dissenting), rev'd o.b. on dissent, 113 N.J. 1, 549 A.2d 428 (1988) (discussing authority of police to arrest for municipal ordinance violation). We consider it unlikely that the police will decide to take more people arrested for minor offenses into custody in order to search them than would otherwise be the case. The police power to arrest in the first instance for these minor offenses is restricted to non-pretextual arrests, Dangerfield, supra, 171 N.J. at 463, 795 A.2d 250, but once the decision is made to take the person into custody and transport him to police headquarters, a full search should be permitted.

Applied to the facts of this case, there is no doubt that the search of defendant's person was permissible. Indeed, even if a Terry frisk limitation were imposed, the patdown here went no further than permitted under that rationale. The officer felt a hard object in defendant's pocket that he felt might be a knife. Even putting aside the officer's subjective belief, he had the right to examine the object to determine if it might be a weapon, regardless of what type of weapon. In retrieving the item, which turned out to be a lighter, the plastic bag came into view. There is no basis to conclude, given these facts, that defendant's rights, under either the Fourth Amendment or our State Constitution, N.J. Const. art. I § 7, were violated.

Montana holds that an arrest for truancy justified a search incident. In re Z.M., 2007 MT 122, 337 Mont. 278, 160 P.3d 490 (2007).

A fire scene search was valid where the senior fireman on the scene allowed his Captain to enter as well. The fire appeared to be out, but they were looking for the cause of the fire. At one point, the firemen invited a police officer in because they saw marijuana seeds in the house. The fire scene search was valid, and the defendant did not separately challenge the officer's entry. State v. Smith, 2007 Ida. App. LEXIS 45 (May 25, 2007).*

Officers had probable cause for issuance of search warrant, and the owner alternatively consented to the search. State v. Hendrickson, 138 Wn. App. 827, 158 P.3d 1257 (2007).*

Defendant's 26-minute roadside investigation did not violate the Fourth Amendment where it was expanded beyond the initial reason for the stop when the nervous defendant driver failed to produce a license or insurance card and did not know who owned the car. Reasonable suspicion developed. State v. Baum, 393 N.J. Super. 275, 923 A.2d 276 (2007).*

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