The Jersey Lawyer

On June 29, 2010, the New Jersey State Supreme Court held in State v. Privott that it was unreasonable for a police officer to lift a suspect’s shirt above his waistband when doing a pat down search for weapons.  Although no weapon was discovered during the search, police discovered a bag of cocaine and charged defendant with third degree possession of cocaine, third degree possession of cocaine with intent to distribute, and second degree possession of cocaine with intent to distribute within 500 feet of a public park.  As a result of the finding that the search was unconstitutional, the evidence was suppressed and defendant’s conviction was reversed.

At the suppression hearing, the officer testified that he was investigating a tip from an anonymous caller that there was a man with a gun at the corner of Plainfield Avenue and West Third Street in Plainfield.  When the officer arrived at the corner, he observed defendant, who matched the description given by the anonymous caller except for the color of the jacket that he was wearing.  Defendant’s jacket was open and he was wearing a long white t-shirt under the jacket.  According to the officer, as the police approached defendant, defendant began to walk away and put his hand towards his waistband.  The officer also testified that he knew defendant from prior arrests and knew defendant to be associated with a violent street gang.

The officer stopped defendant and told him to put his hands on a nearby chain-link fence.  Defendant complied.  The officer then lifted defendant’s t-shirt above his waistband and discovered a bag containing what the officer suspected to be cocaine.  The officer seized the cocaine and arrested the defendant on drug possession and drug distribution charges.  The officer did not find any weapon on the defendant.

When a police officer has a suspicion based on  articulable facts and the inferences drawn from those facts that a person has committed a crime, the officer is permitted to do an investigatory stop.  As part of an investigatory stop, an officer is also permitted conduct a reasonable search for weapons if the officer has reason to believe that he is dealing with an armed and dangerous individual.  However, this search has to be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other instruments that can be used to harm the police officer.

First, in determining whether an investigatory stop was justified under the circumstances of this case, the Supreme Court looked at the totality of the circumstances of the stop.  The Court first noted that the defendant partially matched the description provided by the anonymous tip.  The Court combined that with the fact that the officer knew this defendant from prior arrests, knew him to be associated with a violent street gang, and the fact that defendant motioned towards his waistband, and concluded that the officer had a reasonable suspicion based on articulable facts to conduct an investigatory stop.

In Terry v. Ohio, the US Supreme Court case that first recognized the permissibility of an investigatory stop, the Supreme Court limited the search for weapons to a search of the outer clothing of the suspect to discover weapons.  The Court went on to note that no cases have extended the permissibility of an investigatory stop to include a generalized cursory search for weapons.

In the present case, the Court first explained that the investigative method employed during an investigatory search should be the least intrusive means reasonably available to the officer to confirm or dispel his suspicion that the suspect is armed.  This usually takes the form of a pat-down search of a suspect’s outer clothing.  In the present case, a pat-down search would have been sufficient for the officer to determine whether or not the defendant was hiding a weapon in his waistband; however, no pat down search was performed.  This was not a case where the officer felt a bulge in the waistband, but could not determine what the bulge was without lifting the defendant’s shirt.  Essentially, the officer had no reason to lift the defendant’s shirt.

Because the officer’s conduct in this case exceeded the reasonable intrusion permitted during an investigatory stop, the evidence discovered as a result of the search was suppressed.  Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for representation.  As this case illustrates, if a police officer’s investigation violates the defendant’s rights under the United States Constitution or the Constitution of the State of New Jersey, evidence seized as a result of that investigation can be suppressed and the case can be won.