The Supreme Court continued: N.J.S.A. 2A:161A-1 provides that a person detained or arrested for an offense other than a crime shall not be strip searched unless “the search is authorized by a warrant or consent,” subsection (a); the subject of the search “is lawfully confined,” subsection (c); or, as is relevant here, “the search is based on probable cause that a weapon, controlled dangerous substance, as defined by [N.J.S.A. 2C:35-1 to -31], or evidence of a crime will be found and a recognized exception to the warrant requirement exists.” N.J.S.A. 2A:161A-1(b) (emphases added).
To support a finding of probable cause, an officer must demonstrate there is a well-grounded suspicion that criminal activity is afoot. If probable cause is established, courts must explore exceptions to the warrant requirement. The Fourth Amendment to the United States Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Accord N.J. Const. art. I, ¶ 7. Searches pursued without a warrant are per se unreasonable unless a delineated exception to the warrant requirement applies.
The Appellate Division has previously determined that the search-incident-to-arrest exception to the warrant requirement cannot justify a strip search for purposes of N.J.S.A. 2A:161A-1(b) because the “statute’s protections are triggered by an arrest. An arrest alone, therefore, cannot be both the event invoking the protections as well as the event nullifying them.” State v. Hayes, 327 N.J. Super. 373, 378 (App. Div. 2000). The Appellate Division has also rejected the inevitable discovery doctrine as a means of justifying a search pursuant to the Strip Search Act, which requires “that all elements justifying [the strip search be in place before the search occurs.” State v. Harris, 384 N.J. Super. 29, 51 (App. Div. 2006) (emphasis added). The Court agrees that those exceptions are unavailing in this context.
An officer’s claim of feeling a rock-like substance lends itself to the inference that crack cocaine is present. Since cocaine possession is a crime, the perception of a rock-like substance can satisfy the first prong. The counter-argument can be made however, that a small amount of marijuana that is tightly packaged can also feel like a rock-like substance during a pat down. Since marijuana possession is not a crime unless it is over 50 grams, the first prong of the strip search test would not be satisfied under those circumstances.
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