Posted on Apr 24, 2009

Much has happened in the last week regarding the laws surrounding searches and seizures by police officers, one in which federal law followed the lead of established New Jersey decisions regarding searches of motor vehicles, and one in which state law changed to follow a federal standard (the continuation of the execution of a search warrant after it had been halted).

The 1981 U.S. Supreme Court case of New York v. Belton had established that police could automatically undertake a search of a motor vehicle for weapons and evidence every time a recent occupant had been arrested.  Since then, there had been much criticism of this decision, especially here in New Jersey, where we finally departed from that rule in a 2006 State Supreme Court case, State v. Eckel .   Finally, on April 21, 2009, in Arizona v. Gant that police may search a motor vehicle following the arrest of a recent occupant only if the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.  In other words, is there an issue of the safety of the police officer(s) because the arrestee could reach for a weapon.

In addition, a search of the vehicle following an arrest will only be considered valid when it is reasonable for the police to believe that evidence related to the offense triggering the arrest might be found within the vehicle.  This part of the ruling is best understood in the context of the facts of the case.  The driver was stopped by the police and arrested for driving on the revoked list. They then conducted a search of the vehicle incident to the arrest and located drugs.   The court found that the search was unnecessary because there was no evidence in the vehicle that could be found pursuant to a search that would help to prove that the driver's license had been revoked.

Again, this ruling does not change New Jersey law as it has existed over the last three years, but people driving in New Jersey should still be aware that if they are pulled over by the police, arrested, handcuffed, and removed from their car, any subsequent search of that car may be subject to challenge in court later.   Thus it is important to consult with an attorney to review the case.

Then, on April 22, 2009, in the case of State v. Finesmith the New Jersey appeals court adopted a "reasonable continuation doctrine" that has been in federal law for quite some time.  This doctrine permits the police to  suspend temporarily the search of a home conducted pursuant to a search warrant, and  then later return to the scene, re-enter the home, and continue the search.

In order to do this, however, the police must establish that the second search was a continuation of the original search and that the subsequent decision to resume it was reasonable "under the totality of the circumstances."  In this particular case, the police were looking for evidence contained on a laptop computer. They suspended the initial search when they could not find it. After they later developed additional information as to where the laptop was located, the police returned to the home two hours later, re-entered, and found the laptop.

Steven J. Richardson
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Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.

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