On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-12-1278.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 10, 2011 -- Decided: Before Judges Grall and C.L.Miniman.
Defendant David Davis appeals from his conviction on a conditional plea to second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(2), on which a sentence of a six-year term of imprisonment subject to thirty months of parole ineligibility was imposed together with various fines and penalties. At issue in this case is the propriety of a strip search that produced the cocaine for which defendant was charged in a three-count indictment. We now affirm.
On August 22, 2007, Hamilton Township Police Officer James Bailey executed an affidavit in support of a search warrant. He related that, in the past, a police informant who wished to remain anonymous had provided information, corroborated by other sources, which led to the arrest of two individuals for possession of CDS with intent to distribute. During the week of August 12, 2007, the informant advised Bailey and Detective Richard Braconi that defendant was selling crack cocaine and cocaine. The informant had known defendant for approximately three years and had purchased crack cocaine from him about ten times over the prior two months from a silver Dodge minivan with an identified license plate. Defendant was described as a black male, approximately twenty-nine years of age, five feet nine inches in height, and 185 pounds in weight, with collar-length black braided hair. The officer obtained defendant's photograph from the Picture Link Information System, and the informant confirmed that the photograph depicted the person of whom he spoke.
The officers arranged a controlled buy for the informant to corroborate his statements. The informant was free of CDS immediately prior to the purchase. He approached the driver-side door of the silver Dodge minivan and asked to make a purchase of CDS. Defendant opened up his hand and handed the informant crack cocaine in exchange for money. The informant then proceeded to Bailey's prearranged location and gave him the crack cocaine. The field test was positive, and the narcotics were then secured in an evidence locker.
During the week of August 19, 2007, Bailey and Braconi arranged another controlled buy with the informant. The same procedures were followed, and the informant again made another purchase of crack cocaine from defendant. Again, the substance field tested positive for crack cocaine, which was then secured in an evidence locker.
The police searched motor vehicle records and determined that defendant had a suspended New Jersey driver's license, and the vehicle from which the drug sales were being effected was registered to another person. A criminal record check revealed defendants multiple aliases--David D. Davis, David Davies, David Davis, David Gomez, and David Williams. Defendant had two social security numbers, a state identification number, and an FBI identification number. Defendant had seven arrests and five felony convictions. He had been charged twice with tampering with evidence. Bailey requested a warrant to search the person of defendant and a warrant to search the silver Dodge minivan.
On August 22, 2007, a Superior Court judge issued two search warrants. The first was for the Dodge minivan, and the second was for the person of defendant. There were no restrictions placed on the search of defendant, and the warrant authorized the officers to seize any CDS and any associated paraphernalia.
On August 28, 2007, the officers stopped defendant's vehicle on a public street to execute the search warrant. Bailey advised defendant that he had a search warrant for his person and for the vehicle. In response, defendant began to roll up his car window. Officer Kevin Krall reached over to open the door while defendant held onto the steering wheel and shouted, "I didn't do anything wrong. You're not arresting me." Defendant began to kick his legs but was pulled out of his vehicle, placed on the ground, and cuffed behind his back. An officer conducted a pat-down frisk of defendant before placing him into the police vehicle, but no contraband was located. The van was searched at the scene while defendant was transported to the police station. No contraband was found in the minivan.
At headquarters, Sergeant Paul Seitz asked defendant if there would be more trouble if they took his handcuffs off. Defendant replied, "It's going to get ugly in here when these handcuffs come off." When the handcuffs were nonetheless removed, defendant began to reach down into his waistband but lost his balance and fell over. He was then handcuffed again.
The officers decided to conduct a strip search. The sergeant on duty approved the strip search, but Bailey did not seek the approval of Chief Collins, the officer in charge at the time. The officers took defendant to the identification room to conduct the search. The floor in the room was cleaned twice a day, the room was private, had a locking door, and had no windows. The officers searched defendant's pockets and found $540 in currency. The officers removed defendant's socks and shoes and then removed his pants. Finally they removed his underwear, and nine bags of crack cocaine fell to the floor. Bailey conceded that he was unaware of any rules or regulations governing how to conduct strip searches.
Defendant moved to suppress the narcotics evidence. At the suppression hearing on October 10, 2008, Bailey testified to the facts asserted in his search warrant and to the events of August 28, 2007. He described the strip search and the authorization for it by the sergeant on duty. Oral argument was scheduled for a date in the future.
Defendant's counsel argued that the search was unreasonable and that the warrant did not specifically authorize police to conduct a strip search. She urged that case law, statute, and the Attorney General's Strip Search and Body Cavity Search Requirements and Procedures do not permit a strip search absent special circumstances. She further ...