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State v. Ascencio

Decided: May 8, 1992.


Ironson, J.s.c.



On May 16, 1991, defendant, Harold Ascencio, unsuccessfully tried to pass through a magnetometer ("metal detector") at Newark International Airport. He was stopped by Hector Rodriguez, a supervisor with the Airport's security, when the alarm was activated. Mr. Rodriguez testified that after the alarm was activated, he asked the defendant to step aside, take all objects out of his pockets and pass through the magnetometer again. Defendant complied with that request and gave no indication that he wanted to leave. The alarm was again activated. Mr. Rodriguez then conducted a search of defendant's outer clothing with a hand held magnetometer ("wand"). During the course of that search the wand came into contact with an object under defendant's left armpit. Mr. Rodriguez noticed a bulge in the area and believed that it could have been

a gun. Mr. Rodriguez asked the defendant what the object was and received no reply from the defendant whereupon Mr. Rodriguez called the Port Authority police.

Officer Michael Rea, a Port Authority police officer for nine years, responded to a call that there was a man with a gun at the screening point. Mr. Rodriguez told Officer Rea what had happened. When Officer Rea asked defendant if he was carrying a weapon Mr. Ascencio did not respond. After Officer Rea patted down the area near defendant's left arm to confirm the existence of the object Officer Rea reached under defendant's shirt and physically removed the object. Officer Rea could not tell what the object was. Defendant, when asked what the package contained replied, "I don't know; it belongs to a friend." Officer Rea asked Mr. Ascencio if the package could contain a bomb, a gun or drugs, to which defendant did not respond. At that point, Mr. Rodriguez, who had been trained in the use of X-ray machines, put the package through the machine and detected what he believed to be the outline of a gun. Defendant was given his Miranda warnings and was brought to the police station and put in a holding cell. The package was thereupon opened and drugs, not a weapon, were found.

In contrast, the defendant testified that when the alarm was activated, he decided not to board the plane. He began to walk away from the area, but Mr. Rodriguez ordered him to go back through the magnetometer. Mr. Ascencio did so and the alarm was activated again. Rodriguez grabbed him, moving him off to the side and conducted a search of the defendant using a wand and during the course of which the wand hit a package. Officer Rea patted down the defendant and retrieved the package from underneath his shirt. Defendant was then arrested and handcuffed; the package was put through the x-ray machine, whereupon the defendant was brought to the police station.

Defendant at the motion to suppress asserted that the initial detention and questioning was an illegal search without consent.

He asserted that the frisk of his person was invalid as no threat to the guard existed. The defendant further contended that no search could be conducted as he had abandoned his intention of boarding the plane. Additionally, the defendant argued that the search of the package after defendant's arrest was an illegal warrantless search.

This court finds that the initial stop of the defendant was valid. In State v. Adams, 125 N.J. Super. 587, 312 A.2d 642 (App.Div.1973) the Appellate Division held that a marshal had a duty to prevent hijackings. Had the marshal not stopped a selectee who matched the hijackers profile, who could not produce identification and who appeared to be under the influence, the marshal would have been derelict in his duties. The Court did not require all of those factors to be present, and stated "we do not deem it a prerequisite to a finding that the marshal's suspicions were reasonable, that it be shown that the 'profile' was valid and properly applied and that the magnetometer was properly set up.'" Id. at 598, 312 A.2d 642.

In the case at bar, Mr. Rodriguez testified that the magnetometer and the X-ray machines were used to detect the presence of metal and to prevent weapons and other contraband from passing through to the boarding area. When the magnetometer was set off, FAA regulations required him to ask the person to step aside, take all metal objects out of his pockets and step through again. If the alarm sounded again, the person was to be searched using a hand held magnetometer.

Similar to the marshal in Adams, Mr. Rodriguez had a duty to stop the defendant and to find out what caused the alarm to go off. A security officer, similar to a police officer, may in appropriate circumstances approach a person for the purpose of investigating possible criminal behavior even though there was no probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906-907 (1968). In light of the danger to ...

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