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The New Jersey Supreme Court last week rejected Appellate Division interpretations that would have taken New Jersey’s already liberal search-and-seizure jurisprudence into even more pro-defendant territory. In one of two unanimous decisions issued April 24, State v. Roach, A-8-01, the court upheld the warrantless seizure of drugs found on a motorist during a search for weapons. The decision reversed an appeals court panel that suppressed the drug evidence on grounds the search had exceeded permissible bounds once it was clear the suspect had no weapons. In State v. Dangerfield, A-11-01, the court agreed with an appeals panel and suppressed evidence of a search prompted by an arrest for a petty disorderly persons offense. The justices said the appeals court went too far, however, when it ruled that in all such cases the police must issue a summons rather than take the suspect into custody. The high court said police have the authority to decide whether to arrest or issue a summons, and the justices ordered a court rule change to make it clear the discretion exists. Mark Stalford, the assistant prosecutor from Monmouth County, N.J., who argued for the state, says the ruling in Dangerfield is good for law enforcement because the Appellate Division ruling would have denied police the option of taking suspects into custody. Criminal defense lawyers were watching both cases to see how liberal the court would be at a time when racial profiling scandals have put the spotlight on how the police conduct themselves when motorists and pedestrians are stopped. The attorney general’s office and the Association of Criminal Defense Lawyers filed amicus briefs in Dangerfield. Defendant William Dangerfield was stopped for suspicion of trespassing on Nov. 2, 1999, at a Red Bank, N.J., housing project notorious for drug dealing. Dangerfield tried to ride away on a bicycle, but the policeman grabbed him, placed him under arrest, searched his pockets and found cocaine. The trial judge, and the Appellate Division in State v. Dangerfield, 339 N.J. Super 229 (2001), suppressed the search on grounds there was no probable cause to arrest Dangerfield and therefore no reason to search him. The New Jersey Supreme Court agreed. Even Dangerfield’s attempted flight did not create probable cause, Justice James Coleman Jr. wrote for the unanimous court. “There simply was no reasonable articulable suspicion to which the flight could add weight,” Coleman wrote. But the court said the appellate panel went too far when it said defendants stopped for disorderly persons offenses are presumptively entitled to be released upon the issuance of a summons, rather than being arrested. Rule 3:3-1 of the rules governing criminal practice provides for the issuance of a summons rather than a warrant, unless certain exceptions apply. Because none of those exceptions applied in Dangerfield, a summons should have been issued, the appellate panel reasoned. The New Jersey Supreme Court, however, said N.J.S.A. 40A:14-152 authorizes municipal officers to arrest disorderly persons if they are caught in the act. As a practical matter, Dangerfield says to the police that they have the option to determine by the circumstances whether arrest or summons is appropriate. The court asked its Criminal Practice Committee to amend Rule 3:4-1(a)(1), governing procedures for warrantless arrests, to make clear that the discretion exists. In Roach, a car driven by defendant Derek Roach was stopped on a road in Hillsborough on May 24, 1998, after a local officer noted apparent motor vehicle violations. The officer testified that Roach acted erratically and seemed particularly nervous, and when he smelled alcohol on Roach’s breath, the patrolman called for the officer who supervises investigations of drunken driving. According to the prosecution testimony, the DWI officer noticed a bulge in Roach’s pants and the two policemen feared it was a weapon. It became apparent, however, that the bulge was a plastic bag, which, upon seizure by the police officers, turned out to contain cocaine. A trial judge ruled that the search was permissible, saying, “police are not required to stand there at the side of the car like a couple of mannequins waiting for this guy to pull out whatever it is in his pants.” But the appeals panel reversed on grounds that the state failed to sustain its burden of showing that the warrantless search fit within exceptions to the warrant requirement. The officer exceeded permissible bounds when he pulled out the plastic bag because the pat-down did not indicate the presence of a weapon. The New Jersey Supreme Court disagreed. While acknowledging that officers need particularized and specific bases for reasonable suspicions that a defendant is armed, officers are justified if their steps to protect their safety are reasonable. In this case, “The officers were faced with a nervous and intoxicated defendant who refused to obey their lawful orders and continued to move his hands toward the unidentified bulge,” Justice Virginia Long wrote for the court. “When the police act reasonably in the face of genuine exigency, their warrantless conduct is sustainable as part of the balancing of interests that constitutes the bulk of our search-and-seizure jurisprudence,” Long wrote. “The core inquiry in this setting is whether the police conduct was objectively reasonable under the totality of the circumstances.”

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