Strip Searches (Part 4)

Justice Fernandez-Vina continued: The United States Supreme Court has accepted an officer’s “plain feel” of contraband as an exception to the warrant requirement:  “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.”  Dickerson, 508 U.S. at 375-76.

The Court has not adopted “plain feel” as an exception to the warrant requirement in New Jersey.  However, the Appellate Division has addressed the “plain feel” doctrine.  In Toth, the Appellate Division invoked the “plain feel” or “plain touch” exception to the warrant requirement in declining to suppress evidence seized during a pat down.  321 N.J. Super. at 614-16.  In light of the Appellate Division’s recognition of the “plain feel” exception, police have relied on the doctrine for some time. The Court agrees with the Appellate Division and ratifies the United States Supreme Court’s reasoning in Dickerson, 508 U.S. at 375.  The Court holds that contraband found during the course of a lawful pat down may be seized without a warrant if the officer “feels an object whose contour or mass makes its identity immediately apparent.”  Dickerson, 508 U.S. at 375.  Because immediate tactile recognition of contraband is necessary to justify any subsequent search for and seizure of the contraband, moreover, the “plain feel” exception is compatible with the Strip Search Act requirement “that all elements justifying [the strip search] be in place before the search occurs.”  Harris, 384 N.J. Super. at 51 (emphasis added).

This opinion is another example of our Supreme Court abandoning New Jersey’s rich history of providing citizens rights that go beyond the bare minimums required by the federal constitution. The opinion represents another disappointment for those of us who recognize that anyone who would exchange their liberty for security deserves neither.