A friend of mine recently purchased a jet ski and asked whether the police needed reasonable suspicion to stop him on the water, i.e. if the same rule that applies to automobile stops applies to boats and jet skis. The short and surprising answer is “No.” Under New Jersey’s Administrative Code, the police can stop you at any time on the water to do a “safety check.” They do not need to reasonably suspect that you have done anything wrong. As a lover of freedom and boating who recognizes that people take to the open water precisely for the sense of freedom, this rule seems perverse.
There is hope, though. Just because a law is passed by the Legislature does not mean that the law is constitutional. If the law is challenged and a court determines that it violates the constitution, the law gets taken off the books. With regard to suspicionless water stops, it does not appear that anyone has ever challenged their constitutionality in the state courts of New Jersey.
And while the United States Supreme Court has upheld the constitutionality of suspicionless water stops under the federal fourth amendment, New Jersey citizens enjoy greater search and seizure protections under Article I, paragraph seven of our state constitution. This is because the federal constitution interpreted by the United States Supreme Court announces the bare minimum (the floor) of American citizens’ rights. Under principles of federalism, the courts of the individual states are free to interpret their own state constitutions the same as the U.S. Supreme Court interprets the federal constitution. Or, the state courts can interpret their own constitutions to provide greater rights, i.e. the ceiling of its citizens’ rights as opposed to the federal floor.
The principle argument against a state extending individual rights is usually that the state has a historic commitment to crime control. The principle argument in favor of a state extending individual rights is usually that the state has a historic commitment to individual rights. The good news for those of us in New Jersey who are offended by the idea of a suspicionless stop on the water is that New Jersey has historically favored individual rights. For example, an automobile can be searched without a warrant at the federal level without any showing of exigency, i.e. without any showing that a warrant could not be obtained due to the potential loss of evidence or because there was an imminent danger to human life. In New Jersey however, the police are required to demonstrate the aforementioned “exigent circumstances” (or consent) before they can search an automobile without a warrant. Thus, there is hope that when a suspicionless boat stop and subsequent search is eventually challenged as a matter of state constitutional law in New Jersey, our courts may strike down the law at issue.
Successfully arguing this issue of first impression in New Jersey will require meticulous research and oratory skills. Anyone charged with a criminal offense based on evidence derived from a suspicionless stop on the water would be wise to hire a criminal defense attorney with a record of success at both the trial and appellate levels.