Public Frisk Wasn't End of Justified Detention

Bloomberg Law’s® extensive network of reporters and editors helps subscribers to stay ahead of legal

By Lance J. Rogers

Dec. 3 — State police didn't violate a man's constitutional rights when they conducted a brief on-the-street pat-down before handcuffing him and taking him to a separate location to complete the more thorough hunt for drugs authorized by a search warrant, the New Jersey Supreme Court ruled Dec. 2.

“The initial search was limited in scope and did not bar the police from moving defendant to a more controlled location to complete the search for drugs in accordance with the warrant,” the court said in an opinion by Justice Barry T. Albin.

This wasn't a “second search,” the court said, but a reasonable continuation of the search that began when they stopped and frisked Antoine D. Watts outside a liquor store.

Avoiding Forced Entry

The appellate panel affirmed the trial court's suppression of several packets of heroin that police said fell out of Watts's pants as they escorted him back to his apartment. According to the appellate court, the officers exhausted their authority to search Watts once they patted him down on the street and violated his rights when they escorted him back to the apartment so they could subject him to successive searches.

The lower court found support for its decision in Bailey v. United States, 2013 BL 41070 (U.S. 2013) (92 CrL 561, 2/20/13), which held that police officers may not detain someone incident to the execution of a search warrant if he leaves the area before the warrant is executed.

The New Jersey high court disagreed, saying the police made a reasonable judgment call when they decided to execute a cursory pat-down first, and then resume the search in a more secure area.

“The police made an objectively reasonable decision that compelling defendant to disrobe, partially or completely, in that public setting could cause public humiliation to defendant,” it said.

The no-knock warrant authorized searching both Watts and his residence for heroin, glassine envelopes, vials, and other paraphernalia related to drug distribution. The police said they waited until Watts left the apartment so they could seize his keys and avoid causing a scene by making a forced entry.

‘Reasonable Continuation.'

The officers' decision to conduct a more thorough search elsewhere was also justified as a matter of public safety, the court said.

“Carrying out an intrusive search on a crowded street corner might be misunderstood by uninformed members of the public, or the person's friends or family, and spark a combustible incident,” it said.

The lower court's conclusion that the police had to either search the defendant where he was initially detained or return him to the apartment or some other location and search him there is too “mechanistic,” the court said.

The court also noted that only six minutes passed from the initial pat-down to the discovery of the drugs.

“To the extent a search occurred, it was not a second search but the reasonable continuation of a search that had not been completed outside the liquor store,” the court said.

Bailey Distinguished

The court said it didn't need to confront the question addressed in Bailey because the warrant here authorized both a search of Watts and his residence.

The warrant in Bailey, by contrast, only involved authorization to search a basement apartment for a handgun.

Deborah C. Bartolomey, Deputy Attorney General, argued the cause for appellant. Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for respondent.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

Request White Collar & Criminal Law News