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New Jersey Constitution on Search and Seizure

New Jersey Constitution Article I, Section 7 states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.” This section is similar to the US Constitution 4th Amendment, which guarantees a state will not conduct any unreasonable search and seizure.

A defendant in a criminal case has standing to invoke New Jersey Constitution Article I, Section 7 when s/he has a reasonable expectation of privacy in the area searched or items seized. A search is valid only if the state has probable cause and a valid warrant. If the state lacks a valid warrant, a search may be legal if a warrant exception applies.

A New Jersey defendant has standing when s/he has a legitimate expectation of privacy in the items s/he carries, or in being able to walk about without unreasonable government interference. When the New Jersey police do a search without a warrant, the police meet the state action requirement. The New Jersey Constitution does not apply to private parties such as a person’s employer doing a search in the workplace. To search a person’s property, an officer must have a warrant based on probable cause signed by a neutral magistrate. Absent a search warrant, evidence from a search must be excluded unless a warrant exception applies.

From case law, US Constitution 4th Amendment forbids the police to make stops at a checkpoint set up primarily for general crime control. New Jersey must follow federal case law because federal law overrides state laws that conflict. Special law enforcement concerns (such as immigration or sobriety) sometimes justify checkpoint stops without individualized suspicion, provided the checkpoint is conducted in a nondiscriminatory manner.

An example of a warrant exception is when a New Jersey police officer has reasonable suspicion that criminal activity is afoot, or committed in the officer’s presence, the officer may stop or detain a person for investigation. If an officer believes a detainee is armed and dangerous, the officer may frisk the person, such as a pat down of outer clothing, to ensure there are no weapons.

Another example of a warrant exception is a booking search, performed for administrative reasons such as safety or to ensure suspects’ personal items are not lost. This type of search does not violate the New Jersey Constitution as long as it is a routine practice of the police station. For instance, let’s say Don was arrested for possession of stolen property, and the police found cocaine in Don’s pocket during a booking search. Seizure of the cocaine did not violate Don’s New Jersey constitutional rights, provided Don’s arrest was proper.

But, if the cocaine was obtained indirectly from an unconstitutional search like if Don should not have been arrested in the first place, or thus did not have to go through a booking search, the evidence was inadmissible. The exclusionary rule on evidence found from an warrantless search extends to derivative or secondary evidence obtained as a result of an unconstitutional search and seizure. All evidence stemming from unlawfully obtained evidence is inadmissible.

When charged with a crime, engage an experienced New Jersey criminal defense attorney who understands New Jersey and US constitutional rights. Contact the Law Office of Jason A. Volet at (732) 503-8968 or fill out the form on the right.

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