Before Judges D'Annunzio, Newman and Fall.
The opinion of the court was delivered by: D'annunzio, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 1999
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Tried to a jury under Atlantic County Indictment No. 96-10-2357-B, defendant was convicted of possession of more than one-half ounce of cocaine with intent to distribute it, tampering with evidence, and using a remotely-activated paging device while engaged in the commission of a drug related offense. The court sentenced defendant to an extended term of twenty years' imprisonment with a ten-year period of parole ineligibility for possession with intent to distribute and to consecutive eighteen month terms of imprisonment for the tampering and paging-device counts. The aggregate term, therefore, is twenty-three years. Defendant appeals, contending that evidence seized as a result of a strip search should have been suppressed.
On September 24, 1996 at 7:00 p.m., Detectives Knights, Barber and Thomas of the Atlantic City Police Department were in a police vehicle when they observed defendant, Marcus Hayes, on Virginia Avenue. Defendant was known to them, and they also knew that there was an outstanding warrant for his arrest. As the detectives emerged from their vehicle, defendant recognized them, threw up his hands and said "you got me." The detectives handcuffed defendant behind his back. A pat-down revealed an activated paging device and cash in excess of $1,000, but no evidence of a weapon.
Defendant was placed in the police vehicle and became belligerent. He threatened the detectives and verbally abused them. Knights and Barber testified that defendant was squirming in the back seat and moving his hips. At the same time, they observed defendant attempt to place his cuffed hands down the back of his pants.
Detectives Knights and Barber knew defendant was a drug offender. Knights had arrested defendant as a juvenile for a drug offense, and was aware of defendant's arrest history. Knights testified that a confidential informant had told him that defendant frequented the area of Maryland and Virginia Avenues and "drops off his package around a certain time; if he's carrying a package, it's going to be down his pants."
Knights also explained that he had experience with persons storing contraband in the back of their pants. Knights was convinced that defendant was trying to conceal drugs in his pants and, therefore, decided to do a strip search when they arrived at the police station.
Knights testified that when they placed defendant in the police car they received a communication indicating that the warrant they had executed was for a motor vehicle violation. The bail had been set at $1,000, and defendant had sufficient cash in his pocket to satisfy the bail requirement.
Sergeant Abrams signed a strip search authorization at the police station. Abrams knew defendant and had arrested him as a juvenile. On that occasion, defendant had been in possession of drugs "stuffed . . . down the back of his pants." Defendant had also been arrested for possession of a .25 caliber handgun found down the front of his pants. Abrams testified that he knew of other arrests of defendant and that defendant had been the target of numerous investigations and was known as a drug dealer.
Once Abrams had authorized the strip search, Knights ordered defendant into a room. Knowing that he was going to be strip-searched, defendant began removing his clothing before ordered to do so. Defendant complied with Knights' instructions to bend over and Knights observed a "plastic baggie, a white powdery substance; [it] looked like a big knot was jammed in his [anus]." At Knights' order, defendant removed the package, ripping it open and "smash[ing] cocaine into the floor."
In addition to constitutional limitations on police searches, strip searches and "body cavity" searches are regulated by statute. Both parties have characterized the search of defendant as a "strip search." N.J.S.A. 2A:161A-1 provides:
A person who has been detained or arrested for commission of an offense other than a crime shall not be ...