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State v. Ferraro

Decided: November 12, 1963.

THE STATE OF NEW JERSEY, PLAINTIFF,
v.
JUDY FERRARO, DEFENDANT



On appeal.

Simmill, J.c.c.

Simmill

[81 NJSuper Page 214] On July 16, 1963 Eileen J. Johnson was employed as a "security officer" by Steinbach Company at its store in Asbury Park, New Jersey. She had also been appointed a special police officer by the governing body of the City of Asbury Park. It does not appear when this appointment

was made, but she was not sworn during the year 1963. Defendant and another young lady who accompanied her were trying on garments in the fitting room. Defendant placed articles of merchandise into a straw carrying case which she had with her. This was seen by Mrs. Johnson. The two young ladies then left the store and Mrs. Johnson followed them out. She stopped them in the street outside the door and stated that they had something that belonged to the store. She reached for the carrying case and one of the young ladies told her that she could not have the case, whereupon the security officer told them that they would have to come back into the store because they had something for which payment had not been made. She showed her identification. The two young ladies went back into the store and the security officer found two stolen articles in the straw carrying case. Thereafter, the security officer called a police officer. Then she went to police headquarters and signed a complaint charging the defendant with violation of N.J.S. 2A:170-97 (L. 1962, c. 178). Defendant was convicted in the municipal court and now appeals from such conviction alleging that the articles of merchandise which were recovered were obtained from her by an illegal search and seizure.

It is, of course, academic that a search and seizure without search warrant may be made as an incident to a lawful arrest with or without a warrant for arrest, State v. Smith , 37 N.J. 481, 492 (1962), but defendant contends that she was not under arrest at the time the search and seizure was made. It has never been determined in New Jersey as to what actually constitutes "arrest." Defendant contends that the only procedure followed by the security officer was by virtue of N.J.S. 2A:170-100, which provides:

"A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover such merchandise by taking the person into custody, may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for not more than a reasonable time. Such taking into custody by a law enforcement officer or special officer or

merchant shall not render such law enforcement officer, special officer or merchant criminally or civilly liable in any manner or to any extent whatsoever."

Her contention is that she was taken into custody by virtue of the foregoing statute and that she was not under arrest because the statute itself differentiates between taking into custody and arrest. She contends that there was no lawful arrest until complaint was made and warrant issued.

The State, on the other hand, argues that there was a lawful arrest and the search was an incident of the arrest. As has heretofore been indicated, there has never been any clearcut definition of what constitutes a criminal arrest in New Jersey. This court is of the opinion that the case sub judice demands a definition. Restatement, Torts , § 112, p. 244 (1934), gives the following definition:

"An arrest is the taking of another into the custody of the actor for the actual or purported purpose of bringing the other before a court, or of otherwise securing the administration of the law."

1 Schlosser, Criminal Laws of New Jersey , § 179, 180, p. 179 (rev. ed. 1953), defines arrest as follows:

"In criminal law an arrest is the taking of a person into the custody of the law in order that he may be held to answer for a criminal offense ...


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