State v. Hayes

• Decision Date: 19 January 2000
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Marcus HAYES, Defendant-Appellant.
• Court: New Jersey Superior Court

743 A.2d 378

327 N.J.Super. 373

STATE of New Jersey, Plaintiff-Respondent, v. Marcus HAYES, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted November 9, 1999.

Decided January 19, 2000.

Ivelisse Torres, Public Defender, for defendant-appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Farmer, Jr., Attorney General, for plaintiff-respondent (H. John Witman, III, Deputy Attorney General, of counsel and on the brief).

Before Judges D'ANNUNZIO, NEWMAN and FALL.

The opinion of the court was delivered by D'ANNUNZIO, J.A.D.

Tried to a jury under Atlantic County Indictment No. 96-10-2357-B, defendant was convicted of possession of more than one-half ounce of cocaine with intent to distribute it, tampering with evidence, and using a remotely-activated paging device while engaged in the commission of a drug related offense. The court sentenced defendant to an extended term of twenty years' imprisonment with a ten-year period of parole ineligibility for possession with intent to distribute and to consecutive eighteen month terms of imprisonment for the tampering and paging-device counts. The aggregate term, therefore, is twenty-three years. Defendant appeals, contending that evidence seized as a result of a strip search should have been suppressed.

On September 24, 1996 at 7:00 p.m., Detectives Knights, Barber and Thomas of the Atlantic City Police Department were in a police vehicle when they observed defendant, Marcus Hayes, on Virginia Avenue. Defendant was known to them, and they also knew that there was an outstanding warrant for his arrest. As the detectives emerged from their vehicle, defendant recognized them, threw up his hands and said "you got me." The detectives handcuffed defendant behind his back. A pat-down revealed an activated paging device and cash in excess of $1,000, but no evidence of a weapon.

Defendant was placed in the police vehicle and became belligerent. He threatened the detectives and verbally abused them. Knights and Barber testified that defendant was squirming in the back seat and moving his hips. At the same time, they observed defendant attempt to place his cuffed hands down the back of his pants.

Detectives Knights and Barber knew defendant was a drug offender. Knights had arrested defendant as a juvenile for a drug offense, and was aware of defendant's arrest history. Knights testified that a confidential informant had told him that defendant frequented the area of Maryland and Virginia Avenues and "drops off his package around a certain time; if he's carrying a package, it's going to be down his pants."

Knights also explained that he had experience with persons storing contraband in the back of their pants. Knights was convinced that defendant was trying to conceal drugs in his pants and, therefore, decided to do a strip search when they arrived at the police station.

Knights testified that when they placed defendant in the police car they received a communication indicating that the warrant they had executed was for a motor vehicle violation. The bail had been set at $1,000, and defendant had sufficient cash in his pocket to satisfy the bail requirement.

Sergeant Abrams signed a strip search authorization at the police station. Abrams knew defendant and had arrested him as a juvenile. On that occasion, defendant had been in possession of drugs "stuffed ... down the back of his pants." Defendant had also been arrested for possession of a .25 caliber handgun found down the front of his pants. Abrams testified that he knew of other arrests of defendant and that defendant had been the target of numerous investigations and was known as a drug dealer.

Once Abrams had authorized the strip search, Knights ordered defendant into a room. Knowing that he was going to be strip-searched, defendant began removing his clothing before ordered to do so. Defendant complied with Knights' instructions to bend over and Knights observed a "plastic baggie, a white powdery substance; [it] looked like a big knot was jammed in his [anus]." At Knights' order, defendant removed the package, ripping it open and "smash[ing] cocaine into the floor."

In addition to constitutional limitations on police searches, strip searches and "body cavity" searches are regulated by statute. Both parties have characterized the search of defendant as a "strip search." N.J.S.A. 2A:161A-1 provides:

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, as defined by the "Comprehensive Drug Reform Act of 1987," N.J.S. 2C:35-1 et al., 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, as defined by the "Comprehensive Drug Reform Act of 1987," N.J.S. 2C:35-1 et al., 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.

Section 1a is not applicable because there was no search warrant and defendant did not consent. Section 1b requires probable cause and "a recognized exception to the warrant requirement." The motion judge found that the police had probable cause to believe that defendant was concealing drugs on his body. This finding is supported by substantial credible evidence in the record, see State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964), including defendant's behavior in the police vehicle, the detectives' experience and the detectives' awareness of defendant's criminal history and concealment methods. Cf. State v. Valentine, 134 N.J. 536, 547-48, 636 A.2d 505 (1994) (holding that "an officer's knowledge of a suspect's prior criminal activity in combination with other factors may lead to a reasonable suspicion that suspect is armed and dangerous."); United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723, 733 (1971) (ruling that in assessing the reliability of an informant's tip, police may rely on their knowledge of a suspect's reputation (plurality opinion)).

The motion judge, however, did not address the second requirement of subsection 1b, the existence of an exception to the warrant requirement. We perceive no exception in this case.

The police may perform a warrantless search of a person incident to an arrest. See United States v. Edwards, 415 U.S. 800, 94 S.Ct., 1234, 39 L.Ed.2d 771 (1974); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Defendant was arrested on the motor vehicle warrant. But the strip search statute's protections are triggered by an arrest. An arrest alone, therefore, cannot be both the event invoking the protections as well as the event nullifying them. The State also contends that there was "not enough time, realistically, to obtain a warrant." According to the State, that fact and the likelihood that the defendant would continue to conceal or otherwise dispose of the evidence creates an exigency justifying a warrantless search under section 1b. This contention is without merit because if accepted, it would effectively nullify the statutory protection afforded to persons detained or arrested for non-criminal offenses.

Section 1c permits a strip search of a person "lawfully confined in a municipal detention facility" based on reasonable suspicion, provided the search is authorized under regulations promulgated by the Commissioner of the Department of Corrections. The applicable regulation requires authorization of a strip search by the officer in charge. N.J.A.C. 10A:34-2.16(a)2i.

In the present case, the search was authorized by Sergeant Abrams, the officer in charge, and the police had reasonable suspicion that defendant was concealing drugs. The troublesome question is whether defendant was "lawfully confined in a municipal detention facility" within the meaning of the strip search statute.

All arrests involve some degree of detention. As previously indicated, the statute's protections apply to an arrestee and, therefore, the detention necessary to process an arrestee cannot constitute confinement within the meaning of subsection 1c, and would not justify a strip search.

In the present case, bail had been established at $1,000 when the arrest warrant issued. Defendant had more than enough cash to satisfy the bail. Once bail was posted, defendant would have had the right to leave. The police decided to detain defendant to search for any additional outstanding warrants. The issue, therefore, is whether that detention, which Knights testified would be for approximately two hours, constituted lawful confinement within the meaning of subsection 1c.

We are not applying constitutional protections. We are construing a statute. However, we do so against the background of applicable constitutional principles.

The constitutionality of custodial strip searches was addressed by the United States Supreme Court in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In Wolfish, pretrial detainees at a federal detention facility were required to expose their body cavities, including vaginal and rectal, for visual inspection following a contact visit from any individual not affiliated with the prison. Id. at 558, 99 S.Ct. at 1884, 60 L.Ed.2d at 480-81. The Court acknowledged that this policy was adopted because of the considerable amount of money, drug and weapon smuggling occurring in the prison. Id. at 559, 99 S.Ct. at 1884, 60 L.Ed.2d at 481.

The Court considered the constitutionality of the body cavity search...