Frisk, Patdown, or Request to Exit a Vehicle
The lawyers at our firm encounter a repeated fact pattern where a suspect is subject to a Stop by police and drugs or some other form of incriminating evidence is discovered as a result of a patdown or frisk. While a patdown can actually be commonplace in the field, police do not possess the unconditional right to frisk someone. Where a frisking by a police officer violates the law, the evidence discovered is subject to exclusion from a case as improper.
We can try and defeat improper patdowns and will review the facts of your case and determine whether the frisk which you would subjected to was valid.
Initial consultations are always without charge so do not hesitate to contact an attorney from our defense time anytime about your case.
NJ Law: Frisk or Pat Down by Police
The general rule is that a patdown is permitted where police reasonable believe that an individual may be armed. The standard employed in assessing the validity of a frisk is whether a reasonable man would form the belief that his safety or that of others was in danger. Unless police can identify specific facts, as opposed to a “hunch”, to support this conclusion, a patdown is improper and any evidence uncovered is subject to exclusion upon a Motion to Suppress. Factors to be considered in assessing whether a frisk is supported by objective facts manifesting a danger include: (1) whether the stop involves suspicion of a crime of violence (e.g. robbery, assault, etc.); (2) whether the stop is in a high crime area; (3) the time of day of the stop; (4) the suspect’s prior criminal record; and (5) prior knowledge concerning the suspect being armed.
Scope of Search. When someone is frisked, the search must “be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” An officer is to first pat down a suspect’s outer clothing. If the police discover a bulge or suspicious item, he may then intrude beneath clothing. It should be noted that every bulge cannot reasonably be considered a weapon, for example, they may not open a small package where it obviously could not contain a weapon.
Protective Search of Car
Since the rationale for allowing a protective search is to discover weapons, an automobile may only be subjected to a protective search to the extent of those areas of the passenger compartment where a weapon might be placed or hidden. Accordingly, police may search a glove compartment, console box, under a seat, under mats or seat cushions or any other area accessible to an occupant to conceal a potential weapon. A search of the trunk would not be proper on the basis of the protective search and would require some other exception allowing for a Search Without a Warrant to be valid.
Requests to Exit the Motor Vehicle
The general rule is that the driver may be directed to exit following a valid stop but that this authority does not extend to a passenger unless they committed their own offense or the officer can identify specific facts that support the need to order the passenger out.
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