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New Jersey Criminal Lawyer - Appellate Opinions
Part VII. Searches of the
Person
State v. Privott, 203
N.J. 16 (2010)
In assessing
the scope of the search by the officer, the evidence is clear that
defendant was cooperative at all times. When stopped, defendant
placed his hands against a fence as instructed by the officer. A
reasonable search, as well as the least intrusive maneuver needed to
protect the safety of the officer against a possible weapon, would
have been the traditional pat-down search of defendant's outer
clothing. That did not occur. Rather, the police officer lifted
defendant's tee-shirt to expose defendant's stomach, and in doing
so, observed a plastic bag with suspected drugs in the waistband of
defendant's pants. That maneuver exceeded the scope of the pat-down
search needed to protect the officer against defendant having a
weapon and was akin to a generalized cursory search of defendant
that is not condoned.
This is not a
case in which the officer felt a bulge, but could not determine what
it was, and the defendant refused to obey the orders of the police
and continued to move his hands towards the unidentified bulge.
Under those circumstances, we found “an objectively reasonable
concern for the officers' safety” to validate the officer's removal
of the object. Nor is this case in which the officer first conducted
a lawful pat-down and upon feeling a hard object, removed it to
discover a weapon.
As we have
often “stated, the facts surrounding the event are pivotal.” Our
jurisprudence attempts to strike a balance between the competing
interests of an individual's right to privacy and the need to
protect the police from persons with weapons. In this case, we
strike that balance in favor of the traditional pat-down search. We
conclude that the officer's conduct in lifting defendant's shirt
exceeded the reasonable intrusion that we permit as part of a
Terry stop.
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