September 12, 2018
appeal from Superior Court of New Jersey, Law Division,
Atlantic County, Indictment No. 17-06-1207.
Christina M. Naughton argued the cause for appellant.
P. Thompson, Assistant Prosecutor, argued the cause for
respondent (Damon G. Tyner, Atlantic County Prosecutor,
attorney; Dylan P. Thompson, of counsel and on the briefs).
A. Yomtov, Deputy Attorney General, argued the cause for
amicus curiae Office of the Attorney General (Gurbir S.
Grewal, Attorney General, attorney; Steven A. Yomtov, of
counsel and on the brief).
Margaret R. McLane, Assistant Deputy Public Defender, argued
the cause for amicus curiae Office of the Public Defender
(Joseph E. Krakora, Public Defender, attorney; Margaret R.
McLane, of counsel and on the briefs).
Alexander R. Shalom argued the cause for amicus curiae
American Civil Liberties Union Foundation (Alexander Shalom,
of counsel and on the briefs; Edward L. Barocas and Jeanne M.
LoCicero, on the brief).
Judges Messano, Gooden Brown and Rose.
other issues, this appeal requires us to decide whether the
strip search statute (the Statute), N.J.S.A. 2A:161A-1 to
-10, applies to crimes. We granted defendant Ricky
Brown's motion for leave to appeal from a January 31,
2018 trial court order, denying his motion to suppress
evidence seized as a result of a strip search following his
arrest for indictable drug offenses. After reviewing the
record in light of the contentions advanced on appeal, we
derive the salient facts from the evidence adduced at the
motion hearing. On April 5, 2017, Atlantic City Vice
Detective Darrin Lorady conducted surveillance of
defendant's residence based on "detailed
information" Lorady had "fairly recently"
received from a confidential informant (CI). According to the
CI, defendant would drive from his house in Little Egg Harbor
to the Fox Manor Hotel in Atlantic City, which Lorady
described as "a very busy place for vice
detectives." The CI claimed defendant would distribute
narcotics to a particular individual at the hotel. The CI
provided Lorady with defendant's address in Little Egg
Harbor and a description of defendant's vehicle,
including the license plate number. The CI also stated
defendant "always has a gun."
approximately 10:30 a.m., defendant left his house and drove
to a Walmart in town. Aided in his surveillance by Detective
Brian Hambrecht, Lorady followed defendant and observed him
engage in a "hand-to-hand transaction" in the
Walmart parking lot with the driver of another vehicle. The
detectives then followed defendant into Atlantic City,
heading toward the Fox Manor Hotel. As defendant approached
the hotel, he began circling the block, which Lorady
explained was a common maneuver "to lose a tail or ...
to see if people are following you." Defendant, who
Lorady believed had noticed the surveillance, then drove out
of the city.
on their observations of the hand-to-hand transaction, the
accuracy of the CI's information, and a tinted window
infraction, detectives stopped defendant's vehicle on
Route 40, described by Lorady as "a major highway."
Lorady asked defendant, who "was visibly shaking"
and "seemed very upset[, ]" to exit his vehicle. By
that time, other officers had arrived, including a K-9
partner, who positively alerted for the presence of narcotics
in defendant's vehicle.
the K-9 sniff, defendant "became more nervous as time
progressed" and continued reaching for a "distinct
bulge" in his groin, "adjust[ing] it
slightly." Believing defendant "possibly was
adjusting a weapon," Lorady attempted to perform "a
protective pat down for [his] safety." Defendant
"pulled away" stating, "you can't touch me
there." Lorady "couldn't successfully complete
the pat down[, ] but [he] was able to feel that there was
something . . . hard" in defendant's groin, in an
area that commonly is utilized to conceal weapons.
officers then handcuffed defendant and transported him to the
police station where Lorady obtained permission from his
supervisor to conduct a warrantless strip search of
defendant. The strip search was conducted at noon, in a
private interview room, and resulted in the seizure of five
bricks of heroin from defendant's groin "right where
[Lorady] had felt [it]."
his arrest, defendant was charged in an Atlantic County
indictment with third-degree possession of heroin, N.J.S.A.
2C:35-10(a)(1) (count one), and second-degree possession of
heroin with the intent to distribute, N.J.S.A. 2C:35-5(b)(2)
(count two). Defendant moved to suppress the evidence seized
from his person as a violation of the Statute. The trial
judge denied the motion, finding the Statute did not apply
because defendant was under arrest for a crime at the time of
the search. Further, the judge determined the warrantless
search was valid because the officers had probable cause to
arrest defendant, and exigent circumstances existed because
the officers believed defendant had a weapon concealed in his
appeal, defendant contends the trial court erred in denying
his motion because the Attorney General Guidelines
(Guidelines),  issued pursuant to N.J.S.A. 2A:161A-8,
extend the protections of the Statute to individuals detained
or arrested for crimes, and the police violated the
Guidelines. The State counters the search was justified by
probable cause and reasonable exigent circumstances.
the course of the briefing on appeal, we invited and received
amicus curiae briefs from the New Jersey Office of the
Attorney General, and the Office of the Public Defender. We
also granted a motion of the American Civil Liberties Union
of New Jersey (ACLU) to appear as amicus curiae.
not contending the Statute applies to crimes, the Public
Defender and ACLU claim the Guidelines delineate the
objectively reasonable circumstances that justify a strip
search. They contend here that defendant's constitutional
rights were violated because there was no exigency justifying
the warrantless strip search. The Attorney General claims the
Guidelines were neither intended to nor did they extend the
Statute to defendants detained upon reasonable suspicion ...