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State v. Sheppard

Decided: July 17, 1984.

STATE OF NEW JERSEY
v.
ROBERT M. SHEPPARD, DEFENDANT



Wolin, J.s.c.

Wolin

OPINION

This case represents another classic confrontation in maintaining the balance between the promotion of legitimate governmental interests and the protection of an individual's Fourth Amendment rights. The question presented before this Court for determination is whether a strip search of an arrestee for motor vehicle violations preceding incarceration, solely due to his inability to post bail and absent probable cause to believe the defendant was concealing weapons or contraband, represents a reasonable administrative procedure. Under the circumstances of this case, the action taken by the police at police headquarters exceeded the bounds of constitutional propriety and must be judicially sanctioned to avoid its repetition.

The facts of the case are relatively uncomplicated. At a suppression hearing testimony was given by Officer James Lavelle of the Westfield Police Department that on Sunday, February 19, 1984 at approximately 5:44 p.m., while on routine patrol in uniform and in a marked patrol car, he stopped defendant's motor vehicle because he noticed it possessed an expired inspection sticker. During a credentials check he learned that the defendant's driving privileges were revoked and that his operation of the motor vehicle was unlawful. He ordered the defendant to exit his vehicle, placed him under arrest and, for his own safety, engaged in a pat down search to insure that the defendant was weapon-free. The defendant was then transported to Westfield Police Headquarters and issued two summonses -- one for having an expired inspection sticker and the other for operating a motor vehicle while his driving privileges were revoked. Bail was fixed at $525.00 pursuant to a schedule of pre-set bails established by the magistrate. When the defendant was unable initially to post that amount of bail, he was placed in a detention cell and strip searched. During the strip search, after the defendant had removed his pants, a small glass vial containing a white powdery substance with a small straw was found in the defendant's left front pants pocket. It is the product of this strip search that the defendant seeks to suppress.

Officer Lavelle indicated in his testimony that, without exception, any defendant arrested for a motor vehicle violation who is unable to post bail is placed in a cell and strip searched. He further testified that his conduct of placing the defendant in a detention cell and conducting a strip search was a matter of departmental policy thereby negating any inference of discretionary conduct on his part. Being an officer of only 1 1/2 years' experience, he neither questioned the policy nor disobeyed it. It was clearly his function to secure all of a defendant's

personal property, including his clothes, when placing him in a detention cell awaiting the posting of bail.*fn1

At issue in this application is what occurred after defendant's arrival at police headquarters. The initial stop, pat down search for weapons and subsequent arrest for the motor vehicle violations are clearly valid police conduct. State v. Roberson, 156 N.J. Super. 551, 552 (App.Div.1978). While it is true that most traffic violations proceed by summons rather than arrest, there exists a certain category of motor vehicle offenses, including driving while on the revoked list, that may merit arrest at the scene of the offense. N.J.S. 39:5-25 provides in its pertinent part:

Any police officer may, without a warrant, arrest any person violating in his presence any provision of Chapter Three of this title.

From the recitation of facts, the Court is satisfied that the conduct of Officer Lavelle at the scene was reasonable.

The record is sparse as to the time lapse between the establishment of pre-set bail and the conduct of the strip search. Though the defendant made bail several hours after the initial stop, it is certain that the strip search took place shortly after the issuance of the summonses and his inability to post bail. No reported case in this jurisdiction has heretofore dealt with reconciling these competing interests, public v. private, as they relate to strip searches.

The State relies on Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) and State v. Sims, 75 N.J. 337 (1978). Though a search incident to a lawful arrest is a recognized exception to the warrant requirement permitting a warrantless search, Chimel, supra, the State's reliance on this theory is unsupported by Officer Lavelle's ...


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