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Protective Searches During Vehicle Stops

There are many situations where protective searches are conducted. They may occur subsequent to an arrest or during the ensuing shakedown of a traffic stop. Whether it is a protective search of one’s person or a search for weapons inside the passenger compartment of the vehicle itself, there are many factors to consider when stopped in New Jersey.

Where a person has already been placed under arrest, the search incident to arrest exception to the warrant requirement is one aspect of protective searches that should be considered. These types of searches are bound by their intended purpose and scope. The purpose of a search incident to arrest is (1) to protect the arresting officer from any potential danger and (2) to prevent the destruction or concealment of evidence. Protective searches for weapons are limited to a terry frisk. The scope of a search incident to arrest is limited to the arrestee’s person and the area in which the person might gain access to a weapon or destructible evidence. Chimel v. California, 395 U.S. 752 (1969).

However, in a case where a person has been removed from the vehicle and is unable to gain access to the interior of the car because he or she has been placed under arrest, then a search incident to arrest of the contents inside the vehicle becomes unreasonable under the 4th amendment, as the person can no longer reach a weapon or destructible evidence once restrained outside the car. See State v. Dunlap, 185 N.J. 543 (2006) and State v. Eckel 185 N.J. 523, 538 (2006). Of course, police can still pat you down for their safety if you are under arrest.

Although, if a person has not been placed under arrest at the time, but is subjected to a normal investigative detention inherent in a traffic stop, police may try to pat down the outer clothing in a protective search if the police believe they have reasonable suspicion that the person is armed and dangerous. See Terry v. Ohio, 392 U.S. 1 (1968). However, a terry stop frisk is unlawful without a reasonable basis to believe that the person is armed and dangerous. State v. Smith, 155 N.J. 83, 91 (1998). It is also important to note that the police cannot wantonly reach inside the pockets or put their hands underneath someone’s jacket and underclothes. In State v. Privott, 203 N.J. 16, 31 (2010) the court determined that the police exceeded the scope of the search by lifting up the suspect's shirt, exposing his stomach, and observing suspected drugs in his waistband. Only a pat-down of a person’s outer clothing is acceptable. And even though an officer may pat down a suspect's outer clothing, he may not reach into the person’s clothes to seize an object if the officer is certain that it is not a weapon. See State v. Clarke, 198 N.J. Super. 219 (App. Div. 1985). As in Minnesota v. Dickerson, 508 U.S. 366 (1993), where the Court determined that if an officer feels an item not resembling a weapon, the officer cannot seize it or further tamper with it in order to determine what it is.

Since Michigan v. Long, 463 U.S. 1032, 1039 (1983), protective terry-stop searches may also include the passenger compartment of the vehicle as well. The reasoning is that, during a traffic stop, the driver is usually only subjected to an investigatory detention, not an arrest, and might still possibly gain control of items inside the vehicle if the driver is permitted to return.

In a traffic stop situation, when the traffic stop itself does not provide the level of justification of criminal activity to conduct a search, police will often use the “heightened awareness” of danger standard in State v. Smith, 134 N.J. 599 (1994), to order a driver to exit the vehicle. Once removed from the vehicle police need reasonable suspicion that a person is armed and dangerous to conduct a terry pat down of the person. However, police often revert to cries of “furtive movements” to justify either “heightened awareness” or “reasonable suspicion” so that they can escalate the encounter into a protective search. Often, it’s just an excuse to conduct wanton searches, what some courts refer to as a “fishing expedition”. Police usually invoke the “heightened awareness” excuse to extend the protective search into the vehicle as well. This is a grey area, because there are many cases that have used similar circumstances to either support or disavow the relevancy of “furtive movements”. Typical examples of “furtive movements” or “furtive gestures” that have been successfully used by police to justify their protective searches include such things as: passing of objects between front and back seat occupants, reaching forward under the seat after the car is pulled over, a tip about a person with a gun, refusing police instruction to keep hands on the dashboard, additional evasive action, lying to the police, the presence of other incriminating information about the driver or occupants, the absence of identification, and the lateness of the hour.

However, “mere nervousness does not give rise to probable cause justifying a search”, State v. Lund, 119N.J. 35 A.2.d 1376 (N.J. 1990) “Mere furtive gestures of an occupant of an automobile do not give rise to an articulable suspicion suggesting criminal activity”. State v. Schlosser, 774 p.2d 1132, 1137 (Utah 1989). And an officer’s “inchoate an unparticularized suspicion or “hunch” is insufficient to give rise to reasonable suspicion.” United States v. Sokolow, 490 U.S. 1,7 109 S.Ct. 1581, 104 L.E.d. 2d. (1989).

Police must point to more than just nervousness to justify a protective search of a person or vehicle. A few case examples where the “furtive gestures” were not seen to have justified a protective search include: (leaning down as if putting something on floor did not justify officer's suspicion of criminal activity) see Spence v. State, 525 So.2d 442 (Fla.Dist.Ct.App.1988) ; (defendant's moving fast and leaning forward as officer approached did not create reasonable suspicion justifying even a stop) People v. Mills, 115 Ill.App.3d 809, 71 Ill.Dec. 247, 450 N.E.2d 935 (1983).

As you can see, the determination of what constitutes reasonable suspicion of being armed and dangerous is very subjective. Note that (reaching under the seat after a car was pulled over) was used to support a search in State v. Smith, but (leaning down and leaning forward) did not justify a protective search in Spence v. State or People v. Mills. Though similar reasons, these cases had opposing court outcomes. Therefore, it is paramount that you have an experienced attorney who can examine the circumstances of your case, as these types of protective search cases can be extremely ambiguous.

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