State v. Brown

• Decision Date: 17 October 2018
• Docket Number: DOCKET NO. A-3619-17T1
• Citation: 456 N.J.Super. 352,194 A.3d 534
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ricky BROWN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

456 N.J.Super. 352

194 A.3d 534

STATE of New Jersey, Plaintiff-Respondent,

v.Ricky BROWN, Defendant-Appellant.

DOCKET NO. A-3619-17T1

Superior Court of New Jersey, Appellate Division.

Argued September 12, 2018

Decided October 17, 2018

Christina M. Naughton argued the cause for appellant.

Dylan P. Thompson, Assistant Prosecutor, argued the cause for respondent (Damon G. Tyner, Atlantic County Prosecutor, attorney; Dylan P. Thompson, of counsel and on the briefs).

Steven A. Yomtov, Deputy Attorney General, argued the cause for amicus curiae Office of the Attorney General (Gurbir S. Grewal, Attorney General, attorney; Steven A. Yomtov, of counsel and on the brief).

Margaret R. McLane, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Margaret R. McLane, of counsel and on the briefs).

Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union Foundation (Alexander Shalom, of counsel and on the briefs; Edward L. Barocas and Jeanne M. LoCicero, on the brief).

Before Judges Messano, Gooden Brown and Rose.

The opinion of the court was delivered by

ROSE, J.A.D.

Among other issues, this appeal requires us to decide whether the strip search statute (the Statute), N.J.S.A. 2A:161A-1 to -10, applies to crimes. We granted defendant Ricky Brown's motion for leave to appeal from a January 31, 2018 trial court order, denying his motion to suppress evidence seized as a result of a strip search following his arrest for indictable drug offenses. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

We derive the salient facts from the evidence adduced at the motion hearing. On April 5, 2017, Atlantic City Vice Detective Darrin Lorady conducted surveillance of defendant's residence based on "detailed information" Lorady had "fairly recently" received from a confidential informant (CI). According to the CI, defendant would drive from his house in Little Egg Harbor to the Fox Manor Hotel in Atlantic City, which Lorady described as "a very busy place for vice detectives." The CI claimed defendant would distribute narcotics to a particular individual at the hotel. The CI provided Lorady with defendant's address in Little Egg Harbor and a description of defendant's vehicle, including the license plate number. The CI also stated defendant "always has a gun."¹

At approximately 10:30 a.m., defendant left his house and drove to a Walmart in town. Aided in his surveillance by Detective Brian Hambrecht, Lorady followed defendant and observed him engage in a "hand-to-hand transaction" in the Walmart parking lot with the driver of another vehicle. The detectives then followed defendant into Atlantic City, heading toward the Fox Manor Hotel. As defendant approached the hotel, he began circling the block, which Lorady explained was a common maneuver "to lose a tail or ... to see if people are following you." Defendant, who Lorady believed had noticed the surveillance, then drove out of the city.

Based on their observations of the hand-to-hand transaction, the accuracy of the CI's information, and a tinted window infraction, detectives stopped defendant's vehicle on Route 40, described by Lorady as "a major highway." Lorady asked defendant, who "was visibly shaking" and "seemed very upset[,]" to exit his vehicle. By that time, other officers had arrived, including a K-9 partner, who positively alerted for the presence of narcotics in defendant's vehicle.

During the K-9 sniff, defendant "became more nervous as time progressed" and continued reaching for a "distinct bulge" in his groin, "adjust[ing] it slightly." Believing defendant "possibly was adjusting a weapon," Lorady attempted to perform "a protective pat down for [his] safety." Defendant "pulled away" stating, "you can't touch me there." Lorady "couldn't successfully complete the pat down[,] but [he] was able to feel that there was something ... hard" in defendant's groin, in an area that commonly is utilized to conceal weapons.

The officers then handcuffed defendant and transported him to the police station where Lorady obtained permission from his supervisor to conduct a warrantless strip search of defendant. The strip search was conducted at noon, in a private interview room, and resulted in the seizure of five bricks of heroin from defendant's groin "right where [Lorady] had felt [it]."

Following his arrest, defendant was charged in an Atlantic County indictment with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one), and second-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two). Defendant moved to suppress the evidence seized from his person as a violation of the Statute. The trial judge denied the motion, finding the Statute did not apply because defendant was under arrest for a crime at the time of the search. Further, the judge determined the warrantless search was valid because the officers had probable cause to arrest defendant, and exigent circumstances existed because the officers believed defendant had a weapon concealed in his groin area.

On appeal, defendant contends the trial court erred in denying his motion because the Attorney General Guidelines (Guidelines),² issued pursuant to N.J.S.A. 2A:161A-8, extend the protections of the Statute to individuals detained or arrested for crimes, and the police violated the Guidelines. The State counters the search was justified by probable cause and reasonable exigent circumstances.

During the course of the briefing on appeal, we invited and received amicus curiae briefs from the New Jersey Office of the Attorney General, and the Office of the Public Defender. We also granted a motion of the American Civil Liberties Union of New Jersey (ACLU) to appear as amicus curiae.

Although not contending the Statute applies to crimes, the Public Defender and ACLU claim the Guidelines delineate the objectively reasonable circumstances that justify a strip search. They contend here that defendant's constitutional rights were violated because there was no exigency justifying the warrantless strip search. The Attorney General claims the Guidelines were neither intended to nor did they extend the Statute to defendants detained upon reasonable suspicion or arrested on probable cause of committing a crime, but even if the Guidelines apply, the search passed constitutional muster.

II.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15, 974 A.2d 1057 (2009). "An appellate court reviewing a motion to suppress evidence in a criminal case must uphold the factual findings underlying the trial court's decision, provided that those findings are ‘supported by sufficient credible evidence in the record.’ " State v. Boone, 232 N.J. 417, 425-26, 180 A.3d 1110 (2017) (quoting State v. Scriven, 226 N.J. 20, 40, 140 A.3d 535 (2016) ). We do so "because those findings ‘are substantially influenced by [an] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.’ " State v. Gamble, 218 N.J. 412, 424-25, 95 A.3d 188 (2014) (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161, 199 A.2d 809 (1964) ). We owe no deference, however, to conclusions of law made by trial courts in deciding suppression motions, which we instead review de novo. State v. Watts, 223 N.J. 503, 516, 126 A.3d 1216 (2015).

A.

Evidence seized as a result of a strip search conducted in violation of N.J.S.A. 2A:161A-1 is subject to suppression. State v. Harris, 384 N.J. Super. 29, 49-51, 894 A.2d 8 (App. Div. 2006) ; State v. Hayes, 327 N.J. Super. 373, 385, 743 A.2d 378 (App. Div. 2000). Indeed, the Statute provides "greater protection than is afforded by the Fourth Amendment." Id. at 381, 743 A.2d 378. Originally adopted in 1985 to establish statutory guidelines for acceptable parameters of a strip search, the Statute presumably was enacted in response to State v. Sheppard, 196 N.J. Super. 448, 455, 483 A.2d 235 (Law. Div. 1984), a trial court decision invalidating a police department's policy of strip searching all detainees. See L. 1985, c. 70; Hayes, 327 N.J. Super. at 381, 743 A.2d 378.

We, therefore, begin our analysis with a de novo review of the trial court's initial determination that the protections of the Statute do not apply here. In doing so, we consider the plain language of the Statute. See State v. Brannon, 178 N.J. 500, 505-06, 842 A.2d 148 (2004) ; State v. Thomas, 166 N.J. 560, 567, 767 A.2d 459 (2000) ; State v. Butler, 89 N.J. 220, 226, 445 A.2d 399 (1982) (recognizing the well-settled rule of statutory construction that courts "look first to the language of the statute"). Thus, "If the statute is clear and unambiguous on its face and admits of only one interpretation, [courts] need delve no deeper than the act's literal terms to divine the Legislature's intent." Butler, 89 N.J. at 226, 445 A.2d 399.

Pursuant to the Statute:

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; orc. 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.

[ N.J.S.A. 2A:161A-1 (emphasis added).]

Clearly, as the motion judge recognized, the plain language of N.J.S.A. 2A:161A-1 limits its application to non-indictable...