Justice Noriega filed a dissenting opinion. He wrote that the majority expanded the previously narrow abandonment exception to New Jersey’s automatic standing rule by making abandonment synonymous with flight. In Justice Noriega’s view, it is a step backwards in New Jersey jurisprudence to announce a rule that mere flight, without more, ends a defendant’s constitutional right to challenge a search where, as here, the defendant’s actions, words, and behavior all demonstrated his control of and possessory interest in the subject luggage before fleeing.
Justice Noriega explained that the police proceeded with the warrantless search here under the theory of “search incident to arrest” and that the theory of abandonment now used to approve that search arose only during litigation. Justice Noriega expressed concern that the majority’s holding stretches the concept of abandonment into an exception to the warrant requirement, rather than a pure issue of standing, and notes that the police in this case could have permissibly conducted an orderly inventory search.
An inventory search is an incidental administrative step following arrest and preceding incarceration. Police may search an arrestee without a warrant and inventory the property in the arrestee’s possession before s/he is jailed. Such searches “serve a three-fold purpose: protection of the inventoried property while in police custody, shielding the police and storage bailees from false property claims, and safeguarding the police from potential danger.” Determining the propriety of an inventory search involves a 2-step inquiry: (1) whether the impoundment of the property was justified; and (2) whether the inventory procedure was reasonable. The reasonableness inquiry includes “the scope of the search, the procedure used, and the availability of less intrusive alternatives.”
An inventory search is valid when part of routine police practice and not conducted as a pretext for an otherwise illegal search. Personal property may not be searched under the guise of an inventory search without first affording the arrestee the opportunity to plan for the disposition of the items.
Justice Noriega is the newest Justice on the New Jersey Supreme Court. I presented a lecture with him in Spanish to the Lakewood, New Jersey Community concerning immigration and criminal law issues.
