NJ: Protective weapons search may be obviated by officers’ control of the situation

Reasonable suspicion that a vehicle may contain a weapon can be obviated by the number of officers controlling the scene. Here, the officers outnumbered the occupants of the car and had everybody out, so nobody was getting access to a weapon in the car. [This begs the question of what happens if any of them are released and would get back to the car and then any weapon present?] The inevitable discovery exception may apply, so the case is remanded for consideration of that. State v. Robinson, 2017 N.J. LEXIS 424 (May 1, 2017):

Although the circumstances gave rise to a reasonable suspicion that there was a weapon in the vehicle, the five officers’ swift and coordinated action eliminated the risk that any of the four occupants would gain immediate access to the weapon. Accordingly, the protective sweep exception to the warrant requirement does not govern this case. The community-caretaking exception to the warrant requirement is irrelevant. However, the inevitable discovery exception to the exclusionary rule may be pertinent to this case.

1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and set forth the requirements for warrants. Warrantless searches are permissible only if justified by one of the few specifically established and well-delineated exceptions to the warrant requirement. It is the State’s burden to prove that a warrantless search falls within one or more of those exceptions. (pp. 16-17)

2. The protective sweep exception to the warrant requirement derives from Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In Terry, the Supreme Court held that a police officer may initiate an investigatory stop in the presence of “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21. Terry stops are narrowly drawn to permit a reasonable search for weapons. (pp. 17-19)

3. The United States Supreme Court applied the protective sweep exception to an automobile setting in Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). The Court adopted that standard in State v. Lund, 119 N.J. 35, 48, 573 A.2d 1376 (1990), but rejected the State’s claim that the search reviewed in that case was a valid protective sweep. In State v. Gamble, the Court upheld an automobile search as a lawful protective sweep. 218 N.J. 412, 431-33, 95 A.3d 188 (2014). (pp. 19-22)

4. Long and the Court’s opinions in Lund and Gamble define the standard for a valid protective sweep of an automobile following a traffic stop: the State must present specific and articulable facts that, considered with the rational inferences from those facts, warrant a belief that an individual in the vehicle is dangerous and that he or she may gain immediate control of weapons. The protective sweep exception in the automobile setting does not turn solely on the potential presence of a weapon in a vehicle. Instead, it addresses the imminent danger to police when a driver or passenger will be permitted access to a vehicle that may contain a weapon or may be in a position to evade or overpower the officers at the scene. That standard governs this appeal. (p. 22)

5. In light of Officer Ceci’s observations of defendant’s driving, there were specific and articulable facts giving rise to reasonable suspicion that defendant had committed motor vehicle violations and that the traffic stop was therefore lawful. However, Officer Ceci’s search of the car was not a valid protective sweep. There is no doubt that Officer Ceci’s concerns that defendant and Henderson could be armed were justified, but Officer Ceci addressed the potential danger with prompt and effective action. None of the four occupants was given an opportunity to return to the car or was in a position to gain access to any weapon. The record did not reveal specific and articulable facts that, at the time of Officer Ceci’s search of the vehicle, would reasonably warrant the conclusion that any of the vehicle’s four occupants was potentially capable of gaining immediate control of weapons. The search of the car was not within the protective sweep exception to the warrant requirement. (pp. 23-25)

6. This case does not fit within the narrow parameters of the community-caretaking doctrine as applied to the search of a motor vehicle. There was no potential threat to any person’s safety warranting application of the doctrine at the time that the search took place. The Court does not reach the “plain-feel” exception. (pp. 25-28)

7. In light of the officers’ continued control over the vehicle, their reasonable concern that one or more occupants could have been armed, and the uncertain status of the vehicle’s owner, it may have been inevitable that the handgun would have been discovered. Consequently, the inevitable discovery exception to the exclusionary rule is potentially relevant to this case. The Court explains that exception and provides guidance for evaluating its applicability on remand, but offers no view on the resolution of any issues raised on remand. (pp. 28-32)