NJ: SW for def’s person made it reasonable to frisk him them move him elsewhere for the search of the person

Officers had a warrant to search defendant’s person and house. When they found him, they conducted a patdown and then moved him elsewhere for the more intrusive search. The second search was objectively reasonable under the warrant, and moving him was not unreasonable considering the “all or nothing approach” the trial and court of appeals took would have necessitated a search in public. State v. Watts, 2015 N.J. LEXIS 1239 (Dec. 2, 2015):

It bears emphasizing that the police had a warrant authorizing not only a no-knock entry and search of defendant’s apartment, but also a search of defendant’s person. The trial court did not second-guess the police strategy of waiting until defendant left his apartment to execute the warrant. Seizing defendant outside the apartment and securing the apartment keys allowed for a peaceable entry and minimized the potential for violence and damage to property.

The police detained defendant after he left a liquor store on a busy Elizabeth street corner where there was pedestrian and vehicular traffic. Defendant was wearing a hooded sweatshirt, a shirt, jeans, and boots. Drugs or paraphernalia could have been secreted in his clothes or on his body. The police made an objectively reasonable decision that compelling defendant to disrobe, partially or completely, in that public setting could cause public humiliation to defendant. Such an intrusive search at that location might also have posed potential dangers to the police.

However, the court ruled that the police had one of two choices: search defendant where he was detained or return him to the apartment or some other location and search him there. The court did not allow for a more nuanced approach consistent with constitutional jurisprudence and the notion of reasonableness. We reject, as a matter of law, the trial court’s all-or-nothing approach.

The police decided to conduct a thorough search of defendant at another location. Before placing him in a police vehicle, the officers had a right to pat him down to ensure that he was not armed with a weapon. Cf. State v. Gibson, 218 N.J. 277, 299, 95 A.3d 110 (2014) (“[O]nce an officer lawfully arrests a suspect, he has the right and duty to search him for weapons and contraband before placing him in a patrol car.” (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969))). Further, given that the police had a warrant for a no-knock entry into defendant’s residence, it was objectively reasonable to secure the apartment keys from defendant to avoid having to break down the door or alert other occupants in the apartment. The fundamental purpose of the no-knock warrant was to give the police the benefit of the element of surprise. Possession of the apartment keys advanced that goal.

To be sure, what occurred on the corner of Magnolia Avenue and Third Street constituted a search under both the Fourth Amendment and Article I, Paragraph 7 of our State Constitution. But it was an incidental search preliminary to fulfilling the main objective of the warrant — a search of defendant for the presence of drugs and related paraphernalia. We cannot conclude that the limited search outside the liquor store triggered a constitutional requirement that the police conduct an intrusive search at the same location. As noted earlier, the touchstone of the Fourth Amendment and Article I, Paragraph 7 of our State Constitution is reasonableness. The warrant permitted the police to reasonably continue the search in a secure setting. See State v. Hai Kim Nguyen, 419 N.J. Super. 413, 426-27, 17 A.3d 256 (App. Div. 2011), (stating that warrant authorized reasonable continuation of search of car, which remained in continuous police custody), certif. denied, 108 N.J. 339, 27 A.3d 952 (2011).

We do not take issue with the trial court’s factual findings but rather with its legal conclusions. Detective Valladares testified to the limited nature of the initial search — a search for weapons and the apartment keys. Defendant was not ordered to remove articles of clothing, a natural step in conducting a search for drugs pursuant to the warrant. The trial court never found, as defendant contends, that the police conducted a complete search of defendant at the corner of Magnolia Avenue and Third Street. Rather, the court determined that the police conducted an “incompetent search” at that location, a premise based on the court’s mistaken understanding that once the search began, even for the limited purpose of frisking for weapons and seizing the apartment keys, an intrusive search for drugs had to continue in a public place to its inevitable conclusion. The court maintained that because the police officers did not find contraband on defendant during the initial search, they were obliged to release him.

We disagree with the trial court and the Appellate Division, which affirmed the suppression order. The police did not have to proceed in some formulaic or mechanistic manner. See Bruzzese, supra, 94 N.J. at 228, 463 A.2d 320. Discretion and judgment must play a role in such matters. In deciding to search defendant at another location, the police were permitted to pat him down for weapons before transporting him in a vehicle. We must view the police actions against the standard of objective reasonableness. By that standard, the police did not act unreasonably by delaying completion of the search and returning defendant to the apartment. Defendant was not unconstitutionally detained when the four bundles of heroin fell from the leg of his pants after he exited from the unmarked police car in front of his apartment. Only six minutes passed from defendant’s detention until discovery of the drugs. That was not an unreasonable period to hold defendant for the purpose of completing the search of his person. To the extent a search occurred, it was not a second search but the reasonable continuation of a search that had not been completed outside the liquor store.