Twelve Angry Credits presents:

New Jersey

Arrest, Search & Seizure Review – 2018

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Lesson Plan

Joseph P. Rem, Jr., Instructor Tamra Katcher, Instructor

Table of Contents Consent to search Motor Vehicle State v. Hagans, 233 N.J. 30 (2018)

Blood Draw – Exigent Circumstances - State v. Zalcberg, 232 NJ 335 (2018)

Application for a search warrant - State v. Boone, 232 N.J. 417 (2017)

Search for Driving Credentials - State v. Terry, 232 NJ 218 (2018)

“Slim-Jim” Case - State v. Sencion, 454 N.J.Super 25 (App. Div. 2018)

Searches by Police Dogs - State v. Dunbar, 229 NJ 521 (2017)

Unreasonable Mistake of Law - State v. Sutherland, 231 NJ 429 (2018)

Purse Inventory Search - State v. Hummel, 232 NJ 196 (2018)

Motor Vehicle stops & search warrants - State v. Atwood, 232 NJ 433 (2018)

Expectation of Privacy - Byrd v. United States, ___ US ___ (2018)

Limitations on the Automobile Exception - Collins v. Virginia, ___ US ___ (2018)

The attenuation doctrine – State in the Int. of J.A., 233 NJ 432 (2018)

Vehicle penetration by police – State v. Mandel, 455 NJ Super. 109 (App. Div. 2018)

Strip searches - State v. Brown, 456 N.J.Super. 352 (App. Div. 2018)

Court ordered DNA samples State v. Gathers, 234 NJ 208 (2018)

Plain feel exception - State vs. Evans, 235 NJ 125 (2018)

Cell phone tracking - Carpenter v. United States, 138 S.Ct. 2206 (2018)

Third Party Doctrine in NJ - State v. J.S.G. 456 N.J.Super. 87 (App. Div. 2018)

Cell phone law – Harris and Andrews

Consent to search motor vehicle

State v. Hagans,m 233 NJ 30 (2018)

Background: The events in this case occurred in March 2012, more than three years prior to the Supreme Court’s ruling in State v. Witt, 223 N.J. 409 (2015). In this era, it was State Police policy to rely upon consent searches as a primary method of conducting automobile searches, rather than utilizing the automobile exception to the warrant requirement. Following the publication of Witt, this is no longer State Police practice.

The legal issue in the case involves the validity of a driver’s consent to search her vehicle based upon the smell of marijuana within. The driver initially refused to allow a search. The entire transaction between the trooper and the driver was recorded on police-car video. The driver changed her mind following notification by the police that, “I know, but at this time ... we are going to apply for a search warrant, okay, and that is kinda going to prolong the inevitable. I would just like it to be easier.”

The driver indicated her consent and prior to conducting the search, the trooper re-read her the consent to search form and recorded it all on video MVR). The issue in the case was whether the driver voluntarily consented to the search or if she was coerced.

The prior law related to evaluating the lack of voluntariness of a consent search had been set forth in State v. King, 44 NJ 346 (1965):

(1) the consent was made by an individual already arrested; (2) the consent was obtained despite a denial of guilt; (3) the consent was obtained only after the accused had refused initial requests for consent to search; (4) the consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; (5) the consent was given while the defendant was handcuffed.

Factors potentially indicating voluntariness of consent include:

(1) the consent was given where the accused had reason to believe that the police would find no contraband; (2) the defendant admitted his guilt before consent; (3) the defendant affirmatively assisted the police officers.

Over fifty years ago, when King was decided, MVRs did not exist. Because of rapid developments in technology, MVRs are increasingly mounted in police vehicles, having become another important tool with the capacity to aid in the search for the truth. As we recently noted in [citation omitted] “[MVR] recordings, made while an event unfolds, protect the public and police alike in that the videos can expose misconduct and debunk false accusations.”

The MVR aided the trial court here because it permitted visual and audial evaluation of the police and driver's interaction on the issue of consent. Specifically, the MVR footage helped the trial court determine that [the driver] voluntarily consented to the search of her vehicle.

As a best practice, police officers should tell a suspect only the measures they intend to take—apply for a search warrant—and should not offer a prediction about whether a warrant will issue. Here, [the trooper] had probable cause to support the issuance of a search warrant given the odor of burnt marijuana.. His statement [to the driver] was nothing more than a candid assessment of the likelihood that a judge would grant his application for a search.

Blood Draw – Exigent Circumstances

State v. Zalcberg, 232 NJ 335 (2018)

Background: This case occurred in 2011; this was prior to the publication of Missouri v. McNeely, 133 S. Ct. 1552 (2013) where the Court ruled that there is no categorical exception to the warrant requirement based upon exigency in DWI blood cases.

Introduction – In general, blood evidence can be lawfully secured from a living human being in four different manners:

a) Consent (No level of suspicion required) b) Search warrant (probable cause) c) Subpoena duces tecum (reasonable belief) d) Exigent circumstances (probable cause)

The decision in Zalcberg clarifies the circumstances necessary for the exigent circumstances exception.

1) The legal standard is one of objective reasonableness. 2) The personal opinions of the investigating officer are not relevant. 3) The evidence will be evaluated by the court under the totality of

the circumstances standard, meaning that all the evidence reported by the police will be considered objectively as opposed to individual facts in isolation.

4) Police-created exigency will not provide a basis for this exception to the warrant requirement.

In Zalcberg, the Court ruled that:

Defendant's accident was a serious one, requiring the presence of several emergency-services units, the extrication of injured parties from a vehicle with the “Jaws of Life,” and the need to transport victims via helicopter to a local hospital. The accident occurred on a typically busy state highway on the night of a nearby event that drew unusually high traffic. In addition to investigating the role played by alcohol in the crash, the officers present had to direct car flow, examine the wreckage, interview parties and witnesses, and document their actions, among other essential tasks.

We conclude that any delay in seeking to obtain defendant's blood sample after the establishment of probable cause is attributed to the complexity of the situation and the reasonable allocation of limited police resources—not a lack of emergent circumstances, as argued by defendant. We further find that the hour for which the officer was forced to wait at the hospital before obtaining the blood sample does not undermine the State's claim of exigency.

We reject defendant's assertion that a reversal of the trial court's suppression creates a bright-line “accident exception” to the warrant requirement for blood draws in suspected DWI cases. Not every automobile accident produces a set of circumstances sufficient to constitute exigency. Indeed, we can easily foresee situations in which they would not. Our courts are tasked with focusing on the objective exigency of the circumstances that officers face in each specific, unique instance. Accidents do not, per se, create objective exigency, but the circumstances that accompany them may factor into a court's exigency analysis.

We hold that the facts of this case, in totality, indicate an objective exigency: a fatal accident with multiple serious injuries, the absence of an established telephonic warrant system [at the time of the accident in 2011], and the myriad duties with which the police officers present were tasked. We also afford “substantial weight” to the “potential dissipation of” the alcohol in defendant's blood. Therefore, we hold that the warrantless blood draw did not violate defendant's constitutional rights in this case.

Note – For a much better case related to exigency following the Supreme Court decision in McNeely, see also State v. Jones, 411 NJ Super. 317 (App. Div. 2015)

Application for a search warrant

State v. Boone, 232 N.J. 417 (2017)

On August 29, 2012, Detective Dennis Conway of the Bergen County Prosecutor's Office applied for a warrant to search Boone, his car, and Unit 4A of 211 Johnson Avenue—identified as Boone's apartment—among other things. The detective did not note that the building was a thirty-unit apartment building, nor did he provide any details about Unit 4A or how police knew Boone was a tenant in that unit. Although the warrant application frequently mentions 211 Johnson Avenue, it never discusses the inside of the apartment building, and it fails to mention Unit 4A other than in passing. However, the detective concluded that "my investigation reveals that Boone is distributing Controlled Dangerous Substances, 211 Johnson Avenue, Apartment 4A, Hackensack." Here, no independent documentary evidence, such as a voting record, utility bill, or lease, was offered to corroborate Boone's address. No neighbor, informant, or controlled transaction demonstrated that Boone lived in Unit 4A. Police failed to provide the issuing judge a basis of knowledge from which to conclude that contraband would be found in the particular apartment. That is true regardless of whether the warrant application provided a basis for Boone's arrest because, as noted, probable cause to arrest a suspect is not synonymous with probable cause to search that suspect's apartment. Police lacked the facts important in Keyes, namely a reliable informant who could identify where Boone lived. Police here listed Boone's apartment unit as the targeted property in a conclusory manner, without any evidential basis as to how they knew that specific unit in a thirty-unit building contained contraband. The Court recognizes that the error here was likely an innocent oversight by the police. However, because New Jersey does not recognize an officer's good faith alone as an exception to the warrant requirement, the error demands reversal.

Search for Driving Credentials

State v. Terry, 232 NJ 218 (2018) (4-3) Earlier cases:

State v. Keaton,222 NJ 438 (2015) State v. Hamlett, 449 NJ Super. 159 (App. Div. 2017)

Please note that vehicle searches for credentials have nothing to do with credentials. Rather, it is the evidence that the police find (e.g. drugs, weapons, alcoholic beverages) in plain view during the search that will trigger a motion to suppress in municipal court.

In Terry, the Court sets forth the latest rules for searches under the “credentials exception” to the warrant requirement.

In our view, a weighing of the driver's individual privacy rights against the government's legitimate interests in promoting highway and public safety leads to the conclusion that a limited registration search exception rests on solid constitutional ground. We continue to stand with those jurisdictions that have held the same. The rationale for a limited registration search exception is

(1) the minimal invasion of the driver's reasonable expectation of privacy;

(2) the furtherance of public safety in general and officer safety in particular; and

(3) the recognition that, for constitutional purposes, a brief and restricted search is arguably less intrusive than impounding the vehicle and conducting an inventory search later.

Accordingly, after a driver is given the opportunity to present the vehicle's ownership credentials but is unwilling or unable to do so, a police officer may engage in a pinpointed search limited to those places, such as a glove box, where proof of ownership is ordinarily kept.

We further note that if a driver or passenger explains to an officer that he has lost or forgotten his registration and the officer can readily determine that either is the lawful possessor, then a warrantless search for proof of ownership is not justified. Modern technology may increasingly allow police officers to make such timely determinations.

The “Slim-Jim” Case State v. Sencion, 454 NJ Super. 25 (App. Div. 2018)

We accept that the police may carry a slim jim, or as the assistant prosecutor once referred to it, a “burglary tool,” see N.J.S.A. 2C:5–5(a), to assist someone who is inadvertently locked out. We cannot condone the police forcing entry into a locked residential apartment building [without a search warrant] while on an investigative hunt for suspected criminal activity. Any evidence found after such an invasion of privacy must be suppressed.

Searches by Police Dogs

State v. Dunbar, 229 NJ 521 (2017)

Under federal law, a sniff examination of a vehicle or luggage by a police dog does not constitute a search within the meaning of the 4th Amendment. As a result, no level of articulable suspicion is required for a dog sniff.

By contrast, prior New Jersey law required a reasonable suspicion for a dog sniff search.

In Dunbar, the New Jersey Supreme Court adopted the federal standard and held that a dog search during the course of a motor vehicle stop does not require any level of suspicion. However, the stop must be valid at its inception and not delayed beyond the time necessary for the stop’s mission.

Unreasonable Mistake of Law

State v. Sutherland, 231 NJ 429 (2018)

This Court has acknowledged that a reasonable mistake of fact on the part of a police officer will not render a search or arrest predicated on that mistake unconstitutional. In this matter, a police officer pulled over a car under the belief that the vehicle was in violation of N.J.S.A. 39:3–61(a) and –66 because one of the vehicle's taillights was not operational. The trial court determined that the officer was mistaken about the law and granted defendant's motion to suppress the fruits of the motor vehicle stop. The Appellate Division reversed. The panel determined that the relevant motor vehicle statutes were ambiguous and that, applying the reasoning of the United States Supreme Court in Heien v. North Carolina, 574 U.S. ––––, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014), the officer's stop of defendant's car constituted at most an objectively reasonable mistake of law that should be treated in the same manner as a mistake of fact. Accordingly, the panel held that the officer's mistake of law did not require suppression of the motor vehicle stop.

We now reverse. The Appellate Division erred in concluding that the holding in Heien is applicable here. Because the motor vehicle statutes pertinent here are not ambiguous, we need not consider importing Heien into the determination of this matter. Thus, we do not address the arguments raised herein that Heien's mistake-of-law analysis is not reconcilable with our state constitutional jurisprudence. The officer's stop of defendant's motor vehicle was not an objectively reasonable mistake of law that gave rise to constitutional reasonable suspicion; the stop was therefore unconstitutional.

Related Cases: State v. Puzio, 379 NJ Super. 378 (App. Div. 2005). State v. Scriven, 226 NJ 20 (2016)

Purse Inventory Search

State v. Hummel, 232 NJ 196 (2018)

[The fact that] an inventory search is administrative in nature does not relieve it from Fourth Amendment strictures. An inventory search is still a search and must be reasonable under the circumstances to pass constitutional muster. In [State v. Mangold, 82 NJ 575 (1979)], we explained that the propriety of an inventory search involves a two-step inquiry:

(1) whether the impoundment of the property is justified; and

(2) whether the inventory procedure was legal.

For there to be a lawful inventory search, there must be a lawful impoundment. Courts need only analyze the reasonableness of the inventory search if the impoundment is justified.

The detectives had not arrested defendant before seeking to impound her purse. Defendant kept her purse open and within her reach for the entire interrogation. During questioning, she rummaged through her bag several times in front of the detectives. The detectives did not frisk defendant at any point during her detention. They sought to remove her bag from the interrogation room only after she asked for an attorney.

Crucially, at the beginning of their search, they asked defendant if she would rather examine the contents of her purse herself. It is clear that had valid safety concerns existed at the time they sought to impound her bag, the officers would not have given defendant the option to search her own purse. We therefore reject any contention that safety concerns justified the detectives' removal of her bag from the interrogation room.

Because we find that the impoundment of defendant's purse was not justified, the inventory search exception does not apply to the detectives' search. However, even if the initial impoundment was [sic] justified under the first Mangold inquiry, the search would fail under the balancing test required by the second.

With respect to the second factor, whether law enforcement conducted the search pursuant to routine police procedures is essential. Law enforcement may not use inventory searches as “a ruse for a general rummaging in order to discover incriminating evidence.” Standardized procedures prevent the searching officer from having “so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering evidence of crime. Searches conducted at variance with or in the absence of standardized practices are unlikely to satisfy the inventory-search warrant exception. The State concedes that the departmental policy for inventory searches pertaining to [the investigating officers] is unknown. There is no way then for this Court to determine whether the detectives' search was executed according to any purported administrative policy or practice. Indeed, the State acknowledges that the detectives had to “improvise” in light of defendant's perceived theft threat. If anything, that concession suggests to the Court that the detectives did not act in accordance with a standard inventory search procedure.

Motor Vehicle stops and search warrants

State v. Atwood, 232 NJ 433 (2018)

Background – The initial police justification for the stop of Defendant’s vehicle was a burned out headlamp. Defendant claimed the headlamps were fine. The State possessed an MVR which should have resolved this factual issue. The police received a search warrant after detecting the odor of marijuana within the vehicle and arresting the occupants. The police then impounded the vehicle and sought a search warrant. The subsequent search resulted in the recovery of illegal drugs.

In this appeal, the Court considered whether a search warrant granted after police performed an investigatory automobile stop can retroactively validate the stop and insulate the State from bearing, in a suppression hearing, the burden of demonstrating reasonable and articulable suspicion for the initial seizure of the moving vehicle.

Here, the State proffers the theory that by including in a later-developed search warrant affidavit for defendants' automobile the facts that led police to perform a warrantless automobile stop of defendants' moving vehicle, the judge's grant of the search warrant rendered the preceding automobile stop constitutional. Thus, the State argues, defendant must carry the burden of proof on the challenge to the investigatory stop in this case because the stop was subsumed into, and approved by, the search warrant.

We reject that theory. Search warrants are prospective in nature—they authorize the taking of action. A later-obtained search warrant does not retroactively validate preceding warrantless conduct that is challenged through a suppression motion focused on the legitimacy of the seizure that gave rise to a later search. The State must bear the burden of proving the legitimacy of the seizure that led to a later warrant and search—in this case the stop. Because the State did not carry its burden as to the stop, we affirm the suppression of the evidence seized in the course of the subsequent search as fruit of the poisonous tree.

Expectation of Privacy

Byrd v. United States, ___ US ___ (2018)

Caution: Please note that the legal issue in this case is a matter of federal law. Under the automatic standing policy in New Jersey, (State v. Alston, 88 NJ 211 (1981)) the defendant would have standing to challenge the search unless there was evidence indicating that the defendant knew the vehicle he was operating had been stolen. (State v. Taylor, 440 NJ Super. 515 (App. Div. 2015)).

Facts: Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car's trunk and then left alone for Pittsburgh, Pennsylvania. After stopping Byrd for a traffic infraction, Pennsylvania State Troopers learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car. The troopers proceeded to search the car, discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with federal drug and other crimes. The District Court denied Byrd's motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car.

Byrd, in contrast, was the rental car's driver and sole occupant. The expectation of privacy that comes from lawful possession and control and the attendant right to exclude should not differ depending on whether a car is rented or owned by someone other than the person currently possessing it [.]

Limitations on the Automobile Exception

Collins v. Virginia, ___ US ___ (2018)

During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, a police officer learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. The officer discovered photographs on Collins’ Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the pho-tograph. Without a search warrant, Office Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins. When Collins returned, the officer arrested him.

With this background in mind, we turn to the applica- tion of these doctrines in the instant case. As an initial matter, we decide whether the part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage. When the police officer searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house. When the officer searched the motorcycle, he not only invaded Collins’ Fourth Amendment interest in the item searched, he also invaded Collins’ Fourth Amendment interest in the curtilage of his home. The question before the Court is whether the automobile ex- ception justifies the invasion of the cartilage. The answer is no.

Applying the relevant legal principles to a slightly dif- ferent factual scenario confirms that this is an easy case. Imagine a motorcycle parked inside the living room of a house, visible through a window to a passerby on the street. Imagine further that an officer has probable cause to believe that the motorcycle was involved in a traffic infraction. Can the officer, acting without a warrant, enter the house to search the motorcycle and confirm whether it is the right one? Surely not. The reason is that the scope of the automobile exception extends no further than the automobile itself.

The attenuation doctrine

State in the Interest of J.A., 233 NJ 432 (2018)

A warrantless entry into a home is presumptively invalid unless the State can show that it falls within one of the specific, delineated exceptions to the general warrant requirement. Evidence found pursuant to a warrantless search not justified by an exception to the warrant requirement is subject to suppression under the exclusionary rule. However, the exclusionary rule applies to preclude the admission of evidence only when such evidence is suitably linked to the police misconduct. Therefore, when evidence is acquired by constitutionally valid means after initial unconstitutional action by law enforcement, courts must consider whether the exclusionary rule is applicable. Such evidence is admissible when the connection between the unconstitutional police action and the secured evidence becomes so attenuated as to dissipate the taint from the unlawful conduct.

Police penetration of vehicle

State v. Mandel., 455 NJ Super. 109 (App. Div. 2018)

The credible evidence on this record reveals that the officer placed his head inside the window of the vehicle in order to better hear the defendant. That is what the officer said in his testimony. And based on the traffic noise recorded throughout the MVR . . . this Court, as the court below, found that testimony credible.

Moreover, there was no evidence that the purpose of Gilliland placing his head in the window was to sniff the vehicle cabin for marijuana. The MVR corroborated the officer's testimony regarding the need to hear defendant over the traffic noise, and demonstrated that his intrusion into the vehicle was minimal and not unreasonable.

Strip searches

State v. Brown, 456 N.J.Super. 352 (App. Div. 2018)

Defendant was arrested for a drug possession offense and resisted a search of his groin area incident to his arrest. He was subject to a strip search at police headquarters that resulted in the recovery of CDS. The statute controlling strip searches states: A person who has been detained or arrested for commission of an offense other than a crime shall not be subjected to a strip search unless:

a. The search is authorized by a warrant or consent; b. The search is based on probable cause that a weapon, controlled dangerous substance, or evidence of a crime will be found and a recognized exception to the warrant requirement exists; or c. The person is lawfully confined in a municipal detention facility or an adult county correctional facility and the search is based on a reasonable suspicion that a weapon, controlled dangerous substance, ... or contraband, as defined by the Department of Corrections, will be found, and the search is authorized pursuant to regulations promulgated by the Commissioner of the Department of Corrections.

The defendant's actions in resisting the pat-down search created exigent circumstances justifying the warrantless strip search, and it was not reasonable to expect the officers to apply for a search warrant. Because the arresting officer believed defendant was concealing a weapon, the officer reasonably removed defendant from the side of a busy highway to the police station, and obtained his supervisor's permission to conduct a strip search in accordance with accepted procedures. We therefore conclude that the motion record supports the judge's conclusion that exigent circumstances properly justified the warrantless strip search.

Obtaining DNA Samples by Court Order

State v. Gathers, 234 NJ 208 (2018)

State prosecutors sought to obtain a DNA sample by way of a buccal swab from a defendant who had been arrested eight-months previously and had been confined in the county jail. Because the defendant would not consent to providing the sample, the State moved for a criminal action order compelling the defendant to provide the sample. The supporting certification from an assistant prosecutor contained mostly hearsay and was deemed inadequate by the Appellate Division. The 1

Supreme Court also found the certification to be inadequate and established three rules for seeking a criminal action order for a DNA sample. First, the supporting affidavit or certification must establish probable cause to believe that the defendant’s DNA is located on a piece of evidence and that a DNA sample taken from the body of the defendant is necessary to forensically compare the DNA samples. Secondly, although the use of hearsay in a certification to establish probable cause is acceptable, it cannot form the entire basis for probable cause. The hearsay should at least establish the affiant's basis of knowledge. This is necessary because reliable finding of probable cause must be based upon facts which give the appearance of trustworthiness. Under the totality of the circumstances doctrine, annexing police reports, a laboratory analysis, witness statements and the like to the affidavit in support of the criminal action order can significantly buttress the evidence of probable cause. Finally, the application for the criminal action order should ideally be prepared by a police officer with first-hand knowledge as opposed to an assistant prosecutor. Under these new procedural rules, the Court found that the certification of the assistant prosecutor did not establish probable cause and affirmed the denial of the criminal action order.

State v. Gathers, 449 N.J.Super. 265, 156 A.3d 1108(App. Div. 2017).1

The Supreme Court’s opinion in Gathers will now provide police and prosecutors with a specific, step-by-step procedure for obtaining a criminal action order for a DNA sample. The standard of probable cause assures a certain level of protection to the personal privacy interests of suspects by rendering the order the functional equivalent of a search warrant. The procedures also provide guidance to Superior Court judges on whether to grant these applications.

The Plain Feel Exception

State vs. Evans, 235 NJ 125 (2018)

There are two important precedents set forth in Evans. First, the Supreme Court has now decided to officially recognize the plain feel exception to the warrant requirement as compatible with New Jersey state constitutional doctrine. Under tis exception, the character of the object felt by the police officer must make it immediately apparent to the officer that the object is contraband in the form of illegal drugs. Although this particular exception has been cited and discussed in prior case law, it had never been officially accepted in New Jersey until the Supreme Court’s ruling in Evans. The second precedent relates to strip searches. Among other criteria, the statutory justification for a strip search under N.J.S.A. 2A:161A-1(b) must include probable cause that a weapon, controlled dangerous substance, or evidence of a crime will be found and a recognized exception to the warrant requirement exists. The holding in Evans continues the Appellate Division view that the search incident to arrest exception does not apply since every strip search will involve this exception. The Court in Evans recognizes the plain feel exception as a valid exception to the warrant requirement under the strip search statute. Accordingly, under N.J.S.A. 2A:161A–1(b), the subsequent strip search of the defendant was justified in that there was both probable cause to believe he had drugs secreted on his person and an exception to the warrant

Cell phone tracking

Carpenter v. United States, 138 S.Ct. 2206 (2018)

A gang of robbers operating in several states was tracked down through the use of their cell phone numbers. Specifically, the F.B.I. obtained a court order, as opposed to a search warrant, to obtain the cell site local information encompassing a four-month period. Altogether the Government obtained 12,898 location points cataloging the petitioner’s movements. These data were critical at trial in placing the petitioner at each of the many robberies in diffuse locations. In contesting the petitioner’s motion to suppress, the government argued that the petitioner had no reasonable expectation of privacy in his cell phone records under the traditional “third party” rule. This rule provides that the Fourth Amendment does not provide an expectation of privacy in the documents and materials that a person voluntarily turns over to a third party. The Supreme Court rejected this argument and held that given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology or leverages the technology of a wireless carrier, an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through cell site location information. As a result of the expectation of privacy, law enforcement officials who wish to have access these data need to apply for a search warrant.

The key issue in this case is the refusal by the Supreme Court to extend the “third-party” doctrine to cell site location information. Initially, these data meet the definition of information that the user voluntarily places in the custody of a third person. Generally speaking, there is no expectation of privacy in such information and no Fourth Amendment issues implicated. However, given the enormous volume of personal and private information that can be gathered through the use of this technology, individuals have a legitimate expectation of privacy in their movements as tracked by cell phone locators. Accordingly, law enforcement must access these data by means of a search warrant.

Third Party Doctrine in New Jersey

State v. J.S.G. 456 N.J.Super. 87 (App. Div. 2018)

Police investigating two burglaries went to a school to obtain the name and address of a parent of one of the enrolled students in the school’s official student directory. The police used this information to track down the parent arrest him and recovery evidence of his crimes. The defendant moved to suppress the use of his name based upon a legtitmate expectation of privacy. The Appellate Division ruled that the defendant had no reasonable expectation of privacy in his name contained in his children's school records. The police simply obtained his name from the school's parental contact information and no other records, personal identifiers, information, or details of his life that would implicate constitutionally protected privacy interests. Defendant's name, by itself, did not touch upon matters that a reasonable person would deem private. Since defendant has no privacy interest in his name, the exclusionary rule did not apply.

Cell Phone Law

Two cases both decided on November 15, 2018 by two different panels

State v. Andrews ___ N.J. Super. ___ (2018) : cell phone pass codes are not protected by the 5th amendment.

State v. Harris, ___ N.J. Super. ___ (2018): Photograph obtained in response to a CDW that did not authorize photographs was suppressed.