NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. STATE OF NEW JERSEY, v. Plaintiff-Respondent, ASIM Q. JULES, Defendant-Appellant. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Submitted May 10, 2017 Decided July 26, 2017. Remanded by Supreme Court September 12, 2018. Resubmitted December 11, 2018 Decided January 14, 2019 Before Judges Hoffman and Firko. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 15-02- 0343. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the briefs). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano and Alissa J. Goetz, Assistant Prosecutors, of counsel and on the briefs).
PER CURIAM Previously in this appeal, by way of an earlier unpublished opinion, we considered whether the "plain feel" exception applied to a police officer's feeling of an object he believed to be a prescription pill bottle, while performing a pat down search over defendant's groin area. We found that it did not, and concluded that defendant's subsequent warrantless strip search was not justified under the "Strip Search Act," N.J.S.A. 2A:161A-1 to -10. We reversed the order denying defendant's motion to suppress, and remanded to the trial court for dismissal of defendant's judgment of conviction. State v. Jules, No. A-2400-15 (App. Div. July 26, 2017) (slip op. at 14). Thereafter, the Supreme Court decided State v. Evans, 235 N.J. 125 (2018), and, on September 12, 2018, granted the State's petition for certification and summarily remanded the matter to this court for reconsideration in light of Evans. We directed the parties to file supplemental briefs, which have been received and considered. After careful reexamination of the record, briefs, and issues, we find no reason to alter our earlier disposition of this appeal. We discern the following facts from the suppression hearing. On September 19, 2014, at approximately 1:42 a.m., Officer Aaron Lay of the Neptune Township Police Department observed a vehicle pass by his parked patrol car and slow down 2
at a traffic light; at that point, the vehicle's passenger side brake light failed to illuminate. Officer Lay followed the vehicle and entered its license plate number into his mobile data terminal (MDT) system. The MDT check revealed the vehicle's registration had expired, and the license of the registered owner had been suspended. Upon learning this information, Officer Lay stopped the vehicle and exited his patrol car. As he approached the driver's side of the vehicle, he detected an "overwhelming odor of raw marijuana," which "became stronger and more pungent" as he drew closer. Officer Lay observed defendant in the driver's seat and noted he was the only person in the vehicle. The officer obtained defendant's vehicle registration card, which he confirmed was expired. Defendant said he was coming from a party; he denied any prior arrests, but a records check revealed a prior arrest for marijuana possession in 2013. After backup arrived, Officer Lay asked defendant to step out of the vehicle because of the marijuana odor. According to the officer, the odor became stronger as defendant exited the vehicle and seemed to emanate from his person. Officer Lay proceeded to search defendant, beginning with his pockets. The officer then reached into defendant's groin area, where he felt a round, hard, cylindrical object made of plastic or similar material. Officer Lay testified as follows regarding this object: Q. Based on those observations what you could feel, what did you believe it to be? 3
A. I suspected that it was most likely a prescription pill bottle. Q. And how did you know what made you believe that it was a pill bottle? A. I've handled them in the past so I was familiar with it. Q. In... your work as a police officer? A. Yes, ma'am. Q. Did the discovery of the pill bottle near the groin alert you to anything? A. It's just a common place that subjects will frequently store contraband drug or items to conceal them from law enforcement. Upon discovery of the object, defendant became "antagonistic" and attempted to "twist away" from Officer Lay. Defendant stated the object was his genitalia, but Officer Lay did not believe him. Defendant made the search difficult by "moving around" and at one point "took a step backwards and began to fall on the ground." The police placed defendant in handcuffs so they could continue the search; however, they eventually ended the search because of defendant's continued noncompliance, so they secured him in the back seat of the patrol car, which began to smell of marijuana. Defendant admitted to another officer he had smoked marijuana in his car, but none remained in his vehicle. Officer Lay affirmed he 4
arrested defendant "based off the smell of marijuana and what [he] fe[lt] at [that] point." Officer Lay transported defendant to police headquarters and obtained permission from his shift commander to conduct a strip search. Police asked defendant to remove each article of clothing until he was in his underwear. Defendant then removed his underwear, revealing a translucent, orange prescription pill bottle clenched between his legs. The bottle contained eight tablets, which police later identified as alprazolam (Xanax). Following the suppression hearing, the judge denied defendant's motion in a written opinion. The judge found Officer Lay had reasonable articulable suspicion that defendant committed two traffic violations, justifying the initial stop. He then determined Officer Lay had probable cause to arrest defendant for possession of a controlled dangerous substance (CDS), based on "the late hour of the night, the suspicious conduct of [d]efendant, the 'plain feel' of a prescription pill bottle, the odor of raw marijuana, and Officer Lay's training, experience, and expertise." Relying on the Strip Search Act, N.J.S.A. 2A:161A-1, 1 which requires probable cause and an exception to the warrant requirement to conduct a strip search, he 1 The judge cited N.J.S.A. 2A:161A-3 in his opinion but applied the language from N.J.S.A. 2A:161A-1. 5
concluded the strip search was lawful under the search incident to arrest exception to the warrant requirement, finding "[d]efendant's arrest and search of his person were part of one uninterrupted transaction." After the trial judge denied defendant's motion to suppress, defendant pled guilty to possession of CDS on September 21, 2015. Defendant's judgment of conviction was based on his guilty plea, and the judge sentenced him to two years of probation and a six-month suspension of his license, along with fines and penalties. In our previous opinion, we concluded that defendant was entitled to the statutory protection of N.J.S.A. 2A:161A-1, which prevents strip searches absent certain circumstances. State v. Jules, slip op. at 7-10. The statute provides: A person who has been detained or arrested for commission of an offense other than a crime shall not be subjected to a strip search unless: a. The search is authorized by a warrant or consent; b. The search is based on probable cause that a weapon, controlled dangerous substance... or evidence of a crime will be found and a recognized exception to the warrant requirement exists; or c. The person is lawfully confined in a municipal detention facility or an adult county correctional facility and the search is based on a reasonable suspicion that a weapon, controlled dangerous substance... or contraband, as defined by the 6
Department of Corrections, will be found, and the search is authorized pursuant to regulations promulgated by the Commissioner of the Department of Corrections. [N.J.S.A. 2A:161A-1.] Since the police did not obtain a warrant or defendant's consent when they strip searched him, nor was defendant confined in a detention or correctional facility, we determined that this case falls under subsection (b), State v. Jules, slip op. at 9, which requires both probable cause and an exception to the warrant requirement to be present "before the search occurs." Evans, 235 N.J. at 135 (quoting State v. Harris, 384 N.J. Super. 29, 51 (App. Div. 2006)); see also State v. Hayes, 327 N.J. Super. 373, 377-78 (App. Div. 2000) ("Section 1b requires probable cause and 'a recognized exception to the warrant requirement.'"). However, we reversed the trial judge's determination that the police acted lawfully under the search incident to arrest exception, State v. Jules, slip op. at 10-13, as "the strip search statute's protections are triggered by an arrest," and "[a]n arrest alone... cannot be both the event invoking the protections as well as the event nullifying them." Hayes, 327 N.J. Super. at 378. The Supreme Court explicitly agreed that the search incident to arrest exception is "unavailing in this context," Evans, 235 N.J. at 135, and on remand, the State does not assert we should re-examine the motion judge's determination on this point. 7
The State does argue, however, that we should reconsider our holding that the exigent circumstances exception could not justify the search in this case. We previously noted that this court has "concluded that the risk a defendant might destroy the evidence could not create an exigency justifying a warrantless search under N.J.S.A. 2A:161A-1(b), because 'it would effectively nullify the statutory protection afforded to persons detained or arrested for non-criminal offenses.'" State v. Jules, slip op. at 11 (quoting Hayes, 327 N.J. Super. at 378). We further held that "exigency could not support the search once the police handcuffed and secured defendant." Id. at 12 (citing Hayes, 327 N.J. Super. at 378). We see no reason to reconsider our holding at this juncture. Therefore, the only exception to the warrant requirement that may have supported a strip search under the statute is the "plain feel" exception. In our previous opinion, we addressed the plain feel exception, and held that it did not apply to the facts of this case. State v. Jules, slip op. at *12-13. As to the law and its application to the facts of the case, we wrote: The plain feel doctrine applies "when the officer conducting a lawful search 'feels an object whose contour or mass makes its identity immediately apparent.'" State v. Evans, 449 N.J. Super. 66, 85 (App. Div. 2017)[, rev'd on other grounds, State v. Evans, 235 N.J. 125 (2018)] (quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); State v. Jackson, 276 N.J. Super. 626, 630-31 (App. Div. 1994)). "The officer's 8
knowledge that the arrestee has concealed drugs on his person in the past may also contribute to the officer's immediate realization that the bulge he touched was drugs." Ibid. However, as in Evans, we find this exception does not apply in the instant matter. Officer Lay's feeling of an object he believed to be a prescription pill bottle did not make it "immediately apparent" that the bottle contained contraband. Moreover, although defendant had a prior arrest for marijuana possession, there was no evidence in the record he had previously concealed drugs on his person. [State v. Jules, slip op. at *12-13.] In Evans, Officer Laboy pulled defendant Evans over for suspicion of criminal trespass at a Days Inn, and upon learning that an outstanding arrest warrant was in his name. Evans, 235 N.J. at 128-29. Evans was placed under arrest, and the officer conducted a pat down search incident to Evans' arrest, at which point the officer found $2000 in cash in Evans' pocket, and saw a bulge in the groin area of Evans' jeans. Id. at 129. The officer then felt the bulge, which resulted in the following colloquy at a later suppression motion hearing: 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? 9
A. No. Q. Now, when you felt those rocklike substances, what if anything did you believe that was? A. Crack cocaine. [Evans, 449 N.J. Super. at 77.] Our Supreme Court noted that "based on having felt similar objects '[m]aybe over a hundred times,' Laboy believed the substance was crack cocaine." State v. Evans, 235 N.J. at 129. The officer later obtained permission to transport defendant to the station to perform a strip search, which led to the discovery of plastic baggies containing crack cocaine and heroin. Ibid. As in this case, this court in Evans applied the strip search statute, and noted that it was "undisputed that Officer Laboy had probable cause to believe defendant was concealing contraband upon touching the bulge in defendant's groin area." Evans, 449 N.J. Super. at 81. The court "therefore proceed[ed] to analyze whether a recognized exception to the warrant requirement applied and whether it was objectively reasonable to conduct a strip search under the circumstances here." Ibid. The court then focused primarily on whether the plain feel doctrine applied to the case, and concluded that it did not. The court explained: A threshold requirement for the application of the plain feel exception is that the character of the 10
contraband be "immediately apparent." Dickerson, 508 U.S. at 375. Although the trial judge made this finding, that conclusion is not supported by the record. Laboy never testified it was "immediately apparent" to him that the bulge concealed drugs. Laboy stated he felt the bulge in defendant's groin area and manipulated it. He said the bulge "felt like a rocklike substance" and that when he felt the rocklike substance, he "believe[d]" it was "[c]rack cocaine." When he viewed the substances retrieved, he "suspect[ed]" them to be "[c]rack cocaine and heroin." We recognize that the line between "immediately apparent" and "probable cause" is easily blurred. Given the significant intrusion of a strip search, the authority provided by N.J.S.A. 2A:161A-1 should not turn on whether the officer utters the correct talismanic words. Rather than making a conclusory statement, the officer should articulate specific facts that support his assertion that the nature of the contraband was immediately apparent. By way of example, both our court and the Supreme Court found the plain feel doctrine applicable when the officer conducting a lawful search "feels an object whose contour or mass makes its identity immediately apparent." Dickerson, 508 U.S. at 375; State v. Jackson, 276 N.J. Super. 626, 630-31 (App. Div. 1994). The size and shape of the contraband can be independently assessed by the court's inspection of the physical evidence and give credence to or cast doubt upon the officer's assertion that its identity was "immediately apparent" with a mere touch. See Anne Bowen Poulin, The Plain Feel Doctrine and the Evolution of the Fourth Amendment, 42 Vill. L. Rev. 741, 787-88 (1997). The officer's knowledge that the arrestee has concealed drugs on his person in the past may also contribute to the officer's immediate 11
realization that the bulge he touched was drugs. See Harris, 384 N.J. Super. at 48-49; Hayes, 327 N.J. Super. at 378. The record here fails to provide details to support a finding that the character of the bulge was immediately apparent. Although the location of the bulge here was a fact that gave cause for suspicion, see Harris, 384 N.J. Super. at 47-48, there was no known history that defendant had concealed drugs on his person. Defendant was not under investigation for any drug activity and the only testimony regarding drugs was that defendant had possessed marijuana in the past. The record also fails to establish that the size of the bulge was remarkable in any way. Indeed, Laboy testified that the heroin "was not that big." More important, the manipulation of the bulge cannot be divorced from the tactile information that formed the basis for Laboy's belief that the bulge was drugs. In Dickerson, 508 U.S. at 378, the Supreme Court rejected the application of the plain feel exception because the officer exceeded the permissible scope of a Terry 2 stop when he manipulated the bulge after concluding it was not a weapon. Here, too, the perception that the bulge concealed drugs was made after the bulge was manipulated, not upon a mere touch in which the nature of the concealed object was immediately apparent. The threshold requirement of the plain feel exception to the warrant exception was not met. [Evans, 449 N.J. Super. at 84-86.] 2 Terry v. Ohio, 392 U.S. 1 (1968). 12
Our Supreme Court reversed this court's holding. It began by reciting the law regarding plain feel doctrine set forth by Dickerson, particularly the parts of the opinion that analogize plain feel to the plain view exception. See Evans, 235 N.J. at 136 (alterations in original) ("[I]f an officer 'lack[s] probable cause to believe that an object in plain view is contraband without conducting some further search of the object i.e., if its incriminating character [is not] immediately apparent the plain-view doctrine cannot justify its seizure.... 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 plainview context." (quoting Dickerson, 508 U.S. at 375-76)). Our Supreme Court then acknowledged that it has never adopted the plain feel doctrine as an exception to the warrant requirement in New Jersey, but this court has applied it to cases such as Jackson, 276 N.J. Super. 626, State v. Toth, 321 N.J. Super. 609 (App. Div. 1999), and State v. Cargill, 312 N.J. Super. 13 (App. Div. 1998). Id. at 137-38. Our Supreme Court then "agree[d] with the Appellate Division and ratif[ied] the United States Supreme Court's reasoning 13
in Dickerson, 508 U.S. at 375-76." Id. at 138. Our Supreme Court went on to hold that "tactile discoveries of contraband" may justify a warrantless search under certain circumstances. Specifically, 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) (quoting Hayes, 327 N.J. Super. at 385). [Id. at 138-39.] In finding it was immediately apparent to the officer that Evans possessed a controlled substance, the court turned to the officer's credible testimony: Laboy noticed a bulge in the groin area. When he patted down Evans, he found $2000 in cash and felt a "rocklike substance." In his experiences as a narcotics officer, who had witnessed concealed contraband in the groin area "hundreds of times," the location of the bulge was important to his conclusion. Based on his observations and experiences, Laboy concluded that what he felt was crack cocaine. We find that those facts offer "sufficient credible evidence in the record" to support the trial court's finding that it was immediately apparent to the officer that drugs were present. See State v. Elders, 192 N.J. 14
224, 243 (2007). Officer Laboy's description of a "rocklike" substance, combined with the cash he found and the officer's "hundreds" of similar encounters, merits the application of the "plain feel" exception. Thus, the officer here met both prongs of N.J.S.A. 2A:161A-1(b), and was permitted to perform a strip search on Evans. [Id. at 140 (emphasis added).] Perhaps most importantly, our Supreme Court noted this court's focus on the "level of detail in the officer's testimony," and held that the description here was more detailed than that of the officer in Toth, who said only that he felt "CDS." We find Officer Laboy's description adequate, and although a graphic description is not needed to qualify for the plain-feel exception, we stress that an officer must offer more detail than saying he felt contraband. The more detail, the better. [Id. at 140-41 (emphasis added).] Here, defendant does not challenge his arrest, conceding that the police had probable cause to take him into custody based on the smell of marijuana emanating from his person and vehicle. The only issue on remand is whether the plain feel exception satisfies the second prong of the strip search statute. We find that it does not under these circumstances. As we held in our previous opinion, Officer Lay's feeling of an object he believed to be a prescription pill bottle did not make it "immediately apparent" that 15
the bottle contained contraband. State v. Jules, slip op. at 13. In response to whether "the discovery of the [prescription] pill bottle near the groin alert[ed] [him]," Officer Lay said, "It's just a common place that subjects will frequently store contraband drug or items to conceal them from law enforcement." Not only was the officer forced to speculate whether the prescription pill bottle contained contraband, but he fell short of even being able to credibly say that "he felt 'CDS,'" a statement from which more detail is required. Evans, 235 N.J. at 140-41. In Evans, our Supreme Court held "it was immediately apparent to [the officer] that the 'rocklike' substance he felt was crack cocaine," id. at 141, while here, it was immediately apparent to the officer that the plastic he felt was at most a prescription pill bottle, which by itself is not contraband. Further investigation and manipulation of what was felt from the outside of defendant's garments was required in order for any officer to ascertain that defendant was in possession of contraband. Furthermore, in Evans, the officer was a "narcotics officer... who had witnessed concealed contraband in the groin area 'hundreds of times.'" Ibid. Here, Officer Lay was "assigned to the patrol division," had "attended a basic drug recognition course," and had participated in only "[t]wenty plus" investigations or arrests involving CDS, and "[a]t least ten or so" cases involving marijuana. While he stated that he has encountered contraband stored in suspects' groin areas "[o]n 16
numerous occasions," it is clear his experience constituted a small fraction of the experience possessed by the arresting officer in Evans. An additional fact the Court in Evans found particularly significant was that during the search incident to arrest, the officer found $2000 cash on Evans' person, before he felt Evans' groin area. Here, Officer Lay never found contraband on defendant's person until the strip search at the station. The smell of marijuana emanating from defendant's car and person satisfied the probable cause requirement, but was insufficient to also make the feeling of a prescription pill bottle an immediate tactile recognition of contraband. Nor is the fact that defendant became "antagonistic" upon the officer's feeling of the prescription pill bottle sufficient to add to the "immediately apparent" requirement of the plain feel exception. Those facts, along with the fact that the prescription pill bottle was in defendant's groin area, all add to a reasonable finding of probable cause, but not an "immediately apparent" tactile recognition of contraband that would constitute a crime. The warrantless seizure of the prescription pill bottle from the defendant's groin area cannot, therefore, be justified through an application of the plain feel doctrine. For these reasons, we find our earlier decision to be consistent with Evans and, therefore, continue to adhere to our earlier conclusion that the police did not act reasonably in this matter. We therefore reverse the order denying suppression and 17
remand for the trial court to vacate defendant's judgment of conviction and dismiss the subject indictment. Reversed and remanded. We do not retain jurisdiction. 18