Court Clarifies: Cop Can’t Constitutionally Snatch Crack from Crotch
March 7, 2017 (Fault Lines)– Robert Evans must be smiling a little brighter inside his cell in the Garden State. After a good fondling by Jersey cops looking for drugs, he now gets a new trial after years in jail because someone in the Vineland Police Department doesn’t understand how “plain feel” searches work in the framework of the Fourth Amendment.
Officer Felipe Laboy performed a “warrant check” at the beginning of his shift on January 4, 2012. This was an irregular practice for Officer Laboy, but one that included Evans’ name that night. Never you mind that warrant was for a $6.50 unpaid traffic fine. The mere appearance of Evans’ name on Laboy’s “warrant check” was enough to start a manhunt.
That night, Laboy saw Evans drive into a Days Inn parking lot, back into a parking stall, and then pull out. Laboy and his partner followed Evans, intending to arrest him for whatever outstanding warrant was listed. If there wasn’t a good enough reason to arrest Evans, Laboy planned to issue a trespassing summons should Evans not produce proof of a room at the Days Inn.
Laboy and his partner arrested Evans after confirming an active warrant. They didn’t know what the warrant was for, just that Evans was someone that needed a set of metal bracelets and a night in the pokey. With Evans under arrest, Laboy proceeded with a “search incident to arrest.”
For the non-lawyers and new Fault Lines readers, a “search incident to arrest” is a search law enforcement officers perform on and around your person to detect the presence of any contraband or weapons on the party being arrested. In this case, Officer Laboy retrieved “a little over $2,000” from Evans’ pocket. Laboy also concerned himself with a bulge in Evans’ pants.
Laboy, according to the New Jersey Appellate Division’s decision, couldn’t quite determine whether it was drugs in Evans’ pants or if Evans was just happy to see him. When questioned, Officer Laboy described the bulge as follows:
Q: Can you describe what, if anything, you felt?
A: It felt like a rocklike substance.
Q: Now, prior to arresting Mr. Evans, did you have any information that he was carrying drugs on him? In fact, did you pull him over for drugs that evening?
Q: Now, when you felt those rocklike substances, what, if anything did you believe that was?
A: Crack cocaine. [emphasis the court’s].
After fondling Robert Evans’ junk, Officer Laboy realized his belief Evans carried drugs in his crotch area required a search that would expose Evans’ underwear and pants. This is a strip search in New Jersey and requires permission from the station house commander. That permission was freely given, and Evans was taken to a local police station for the strip search.
During the search, Laboy found “two bags containing a rocklike substance” and “nine baggies containing a powdery substance that were tied together.” Again, during questioning, Laboy reiterated his belief that the substances obtained during the “strip search” were crack cocaine and heroin.
Officer Laboy’s beliefs were enough for the trial court, that found under the nebulous “totality of the circumstances” standard the belief that rocklike substance was crack and the powder was heroin was enough to allow what is called the “plain feel” doctrine to apply for the search. This meant all the material obtained during the search of Evans’ person is relevant and admissible in court. A separate search obtained more contraband from Evans’ vehicle, but the big issue on appeal was the strip search of Evans based on the “plain feel” exception.
The “plain feel” exception, according to the New Jersey Appellate Division, requires more than belief. An officer’s belief something constituted a weapon or contraband didn’t meet the “plain feel” exception. The incriminating character of the contraband or weapon had to be “immediately apparent.”
If a police officer lawfully pats down a suspect’s outer clothing and and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the subject’s privacy […] [emphasis the Court’s]
And that was the downfall for Officer Laboy’s strip search of Robert Evans. It didn’t matter Laboy believed the bulge in Evans’ pants were drugs. The fact the bulge wasn’t “immediately apparent” to be drugs was enough to suppress the fruits of the strip search. Nothing in the world Officer Laboy or his partner could do would show that Robert Evans had been involved in any prior drug transactions. The unlawful strip search was reversed, the fruits of that search were suppressed, and now Robert Evans gets a new trial.
This case isn’t a feel-good story of a complete acquittal, because once Officer Laboy and his partner fondled Robert Evans to find nasty hurtful drugs, they remanded a few issues to trial. You see, Evans had a gun in his car allegedly containing hollow-point bullets, so the New Jersey Appellate Division felt it was necessary for a new trial that addressed whether Evans should go free or if he must suffer more litigation costs for having a gun in the car after an unlawful search of his person granted New Jersey cops free rein to search his car.
In criminal law, we celebrate the small wins. Sometimes that’s all we get.