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State v. Foley

Decided: June 8, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS FOLEY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Ocean County.

O'Brien, Skillman and Landau. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

This appeal involves the constitutionality of a State Police investigatory procedure called Operation Lookout. This procedure consists of stationing troopers in toll booths on the Garden State Parkway to observe drivers who appear to be under the influence of alcohol.

Defendant appeared to a trooper involved in Operation Lookout to be under the influence. Therefore, the trooper ordered him to pull to the side of the road. The trooper directed defendant to perform a series of "psychophysical" tests and

made additional observations which confirmed the trooper's initial impression that defendant was under the influence. Defendant subsequently took two breathalyzer tests, which produced readings of .20% and .21%. He was then charged with driving while under the influence of alcohol, in violation of N.J.S.A. 39:4-50.

Defendant moved in the Law Division to suppress all evidence against him on the grounds that Operation Lookout violated his rights under the Fourth Amendment. This motion was denied. Defendant then pled guilty in municipal court. On appeal the only issue raised by defendant is the constitutionality of Operation Lookout.

Preliminarily, we note that defendant does not dispute that the trooper had an adequate basis for temporarily detaining him once he made his initial observations from the toll booth. Nor does defendant dispute that there was probable cause to arrest him after the trooper conducted "psychophysical" tests and made additional observations of him during the initial detention. Rather, defendant's sole argument is that the initial observations made of him from the toll booth violated his rights under the Fourth Amendment.

The Fourth Amendment prohibits "unreasonable searches and seizures." Hence, a claim under the Fourth Amendment must be based on either a "seizure" or a "search."*fn1 We

conclude that observations by a police officer stationed in or about a toll booth of drivers who stop to pay tolls are neither "seizures" nor "searches" within the meaning of the Fourth Amendment. Therefore, we affirm.

I

A "seizure" of the person requires some "detention . . . against his will." Cupp v. Murphy, 412 U.S. 291, 294, 93 S. Ct. 2000, 2003, 36 L. Ed. 2d 900 (1973). "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S. Ct. 1868, 1879 n. 16, 20 L. Ed. 2d 889 (1968); see also 3 LaFave, Search & Seizure (2 ed. 1987) ยง 9.2(h). Hence, no "seizure" occurs if a police officer simply observes or ...


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