State v. Evans

• Decision Date: 28 June 2018
• Docket Number: 079144,A–85 September Term 2016,A–86 Sept. Term 2016
• Citation: 235 N.J. 125,193 A.3d 843
• Parties: STATE of New Jersey, Plaintiff–Appellant and Cross–Respondent, v. Robert L. EVANS, Defendant–Respondent and Cross–Appellant.
• Court: New Jersey Supreme Court

235 N.J. 125

193 A.3d 843

STATE of New Jersey, Plaintiff–Appellant and Cross–Respondent,

v.Robert L. EVANS, Defendant–Respondent and Cross–Appellant.

A–85 September Term 2016

A–86 Sept. Term 2016

079144

Supreme Court of New Jersey.

Argued February 27, 2018

Decided June 28, 2018

Corrected October 10, 2018

Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant and cross-respondent (Gurbir S. Grewal, Attorney General, attorney; Steven A. Yomtov, of counsel and on the briefs).

Margaret McLane, Assistant Deputy Public Defender, argued the cause for respondent and cross-appellant (Joseph E. Krakora, Public Defender, attorney; Margaret McLane, of counsel and on the briefs).

JUSTICE FERNANDEZ–VINA delivered the opinion of the Court.

We consider whether the "plain feel" doctrine justified a warrantless strip search under the circumstances of this case in light of the "Strip Search Act," N.J.S.A. 2A:161A–1 to –10.

Officer Felipe Laboy of the Vineland Police Department saw defendant Robert L. Evans drive into and out of a Days Inn parking lot and pursued him in suspicion of criminal trespass. After Laboy pulled Evans over, the officer ran a warrant check and learned that Evans had an active warrant for his arrest.

Laboy placed Evans under arrest and patted him down. Laboy found $2000 in cash in Evans’s pocket and, when he reached the groin area, Laboy felt a "rocklike substance." Based on his experiences with narcotics and knowledge of where drugs are sometimes concealed, Laboy concluded that the bulge was likely crack cocaine. With his supervisor’s permission, Laboy conducted a strip search and found crack cocaine and heroin between Evans’s underwear and pants.

Evans sought to suppress the evidence found in the pat down and search. The trial court found Officer Laboy’s testimony credible and denied the suppression motion.

The Appellate Division reversed in a published opinion. State v. Evans, 449 N.J. Super. 66, 155 A.3d 580 (App. Div. 2017). Although the panel found that there was probable cause for a pat down and acknowledged that "plain feel" was an exception to the warrant requirement, it disputed the finding that it was immediately apparent to Laboy that the bulge in Evans’s pants was contraband. The panel thus held the officer’s actions were unreasonable and vacated Evans’s conviction.

We find that the panel erred in its application of the "plain feel" doctrine. Officer Laboy had witnessed "hundreds" of instances where defendants concealed contraband in the front of their pants and therefore immediately recognized the "rocklike" substance he felt to be similar to crack cocaine. Between the officer’s experience-derived identification of the substance and the presence of $2000 in cash, we find that the "plain feel" exception—which we hereby adopt—applied. Because we find the strip search valid, we reverse and reinstate Evans’s conviction.

I.

A.

The following facts are largely derived from Officer Laboy’s testimony at the suppression hearing. On January 4, 2012, Laboy began his evening shift by compiling a computer-generated list of outstanding warrants in the area. Evans was on the list due to his failure to pay outstanding traffic fines, but Laboy knew only that Evans had an outstanding warrant, not what the warrant was for.

After compiling the active warrant list, Laboy and his partner patrolled the parking lots of the Days Inn and Denny’s, which were areas known for narcotics, trespassing, and prostitution. Laboy’s beat with the Street Crime Unit was to monitor the area’s hotels in an effort to preempt crimes.

Just after midnight, Laboy saw Evans back his car into a space in the Days Inn parking lot and recognized him from a prior arrest and from a recent circulation of Evans’s photo in connection with potential trespassing. Evans noticed the police presence and immediately drove out of the parking lot. The police pursued him.

Laboy consulted his list, recognized Evans’s name, and decided to arrest him for his outstanding warrant. The patrol unit pulled Evans over, and he was unable to provide a driver’s license. Laboy told Evans to get out of the car and placed him under arrest for the outstanding warrant, as well as for trespassing at the Days Inn. The officer then conducted a pat down search of Evans incident to his arrest.

During the search, Laboy found $2000 in cash in Evans’s pants pocket. He also noticed a bulge in the groin area of Evans’s jeans. In patting down that area, he felt a "rocklike substance." Based on having felt similar objects "[m]aybe over a hundred times," Laboy believed the substance was crack cocaine. Evans denied there was anything present.

Because a more invasive search would require exposing Evans’s underwear, Laboy contacted his supervisor to authorize a strip search. A sergeant arrived on the scene, and gave Laboy permission to transport Evans back to the station for a strip search.

At the station, Laboy took Evans into a small room with another officer present. He unbuckled Evans’s pants and reached into his jeans. Evans’s underwear was not removed, nor were his private parts exposed. Between Evans’s pants and underwear were two plastic bags. One bag contained nine baggies of heroin; the other had two smaller bags of crack cocaine. The police secured a search warrant for Evans’s car, from which they later recovered a handgun loaded with hollow-point bullets.

B.

In March 2012, a Cumberland County grand jury charged Evans with second-degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:39–5(b) (count one); third-degree possession of heroin, contrary to N.J.S.A. 2C:35–10(a)(1) (count two); third-degree possession of cocaine, contrary to N.J.S.A. 2C:35–10(a)(1) (count three); second-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35–5(b)(2) (count four); third-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35–5(b)(3) (count five); fourth-degree possession of hollow nose bullets, contrary to N.J.S.A. 2C:39–3(f) (count six); second-degree possession of a firearm during a drug offense, contrary to N.J.S.A. 2C:39–4.1(a) (count seven); and second-degree possession of a firearm by a convicted person, contrary to N.J.S.A. 2C:39–7(b)(1) (count eight).

Evans sought to suppress the evidence as a violation of the Strip Search Act, N.J.S.A. 2A:161A–1, which requires probable cause and an exception to the warrant requirement to conduct a strip search. Evans also argued that Laboy had a duty to determine the subject of the warrant before arresting him.

The motion judge found Laboy credible and ruled that the stop and arrest of Evans for the active warrant were permissible. The judge noted that due to the active warrant, Laboy could arrest Evans regardless of the offense. The judge ruled that the officer’s search incident to Evans’s arrest could not alone qualify as an exception to the warrant requirement needed to authorize a strip search. However, the judge found that the "plain feel" doctrine outlined in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), and State v. Toth, 321 N.J. Super. 609, 729 A.2d 1069 (App. Div. 1999), provided a basis to conduct a strip search. Applying the doctrine to the facts of the case, the judge ruled the strip search was permitted because Laboy found a large amount of money and felt a hard, rocklike substance in the groin area, which in Laboy’s experience felt like crack cocaine and was located in an area where defendants at times conceal contraband. Therefore, the judge denied the motion to suppress.

Following a jury trial, Evans was convicted on all charges. In April 2015, he was sentenced to forty years of incarceration with a twenty-year parole disqualifier.

On appeal, Evans argued that "plain feel" was not a valid exception to the warrant requirement under the Strip Search Act. In a published opinion, the Appellate Division reversed the denial of the suppression motion and vacated Evans’s conviction. Evans, 449 N.J. Super. at 73, 155 A.3d 580.

The panel found that Laboy had probable cause to suspect Evans had contraband in his pants and noted that the "plain feel" doctrine is a viable exception to the warrant requirement. However, the panel disagreed with the trial court’s finding that Laboy acted reasonably in performing the strip search on Evans.

The panel focused on prong two of N.J.S.A. 2A:161A–1(b), which allows police to strip search a defendant if there is probable cause that a weapon or contraband is present "and a recognized exception to the warrant requirement exists." Citing Dickerson, 508 U.S. at 375–76, 113 S.Ct. 2130, the panel found "plain feel" could apply only if the character of the contraband was "immediately apparent" to the officer.

The panel found Laboy’s remarks conclusory, noting that he did not articulate "specific facts [to] support his assertion that the nature of the contraband was immediately apparent." Evans, 449 N.J. Super. at 85, 155 A.3d 580. Particularly important to the panel were the absence of facts indicating "that the size of the bulge was remarkable in any way" and the lack of known history of Evans’s concealing drugs on his person. Id. at 85–86, 155 A.3d 580.

The panel also found that the record lacked support for "a finding that the character of the bulge was immediately apparent to Laboy" because the arrest was for an active warrant and not for suspicion of narcotics. The panel added that "the perception that the bulge concealed drugs was made after the bulge was manipulated, not upon a mere touch in which the nature of the concealed object was immediately apparent." Id. at 86, 155 A.3d 580. Based on those facts, the panel concluded that "protections afforded by" the Strip Search Act would be jeopardized if a strip search were permitted. Ibid.

The State sought certification from this Court, which we granted. 230 N.J. 508, 170 A.3d 303 (2017). We also granted Evans’s cross-petition. 230 N.J. 505, 170 A.3d 302 (2017).

II.

The State u...