D/P Marijuana Posession did not justify Strip Search – State v. Harris

In State v. Harris, released today by the Appellate Division, the defendant was arrested on the street for a disorderly persons level possession of marijuana and possession of a weapon (knife). The events leading to the arrest involved a street detention of the defendant and a companion during which time the police suspected that the defendant was hiding evidence in his mouth. The defendant spit out the hidden object, which turned out to be marijuana. A search incident to the arrest on the street yielded the knife.

Once back at the police station, the police suspected that the defendant might have additional contraband hidden on his person. The arresting officer sought and received command authority to conduct a strip search. During the course of the search, the police noticed a plastic bag secreted on the defendant’s body. The police sought to remove the bag against the defendant’s violent resistance. The bag contained distribution levels of CDS.

The Appellate Division sustained the search on the street that yielded the marijuana and knife but ordered the CDS recovered from the strip search suppressed. The Court noted that a person who has been arrested for a disorderly persons offense may only be subject to a strip search under certain limited conditions established by statute. (NJSA 2A:161A-1). To justify a strip search in this defendant’s case, the police would have to demonstrate probable cause to believe that the defendant possessed a weapon, CDS or evidence of a crime AND that a recognized exception to the warrant requirement existed. The Court found that the police did not have probable cause to believe this defendant possessed CDS hidden on his body. The panel reasoned that the mere possession of a small amount of CDS (marijuana) is not an indication generally of other hidden drugs on the body of a person. The Court also rejected the idea that the fact that the defendant had hidden drugs in his mouth would give rise to probable cause that he had hidden drugs on or in other parts of his body.

Download a copy of State v. Harris.

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