Weapon, Drug or Other Incriminating Evidence Discovered When You Were Being Arrested?
You may have been searched while being arrested on a warrant for child support, an outstanding traffic summons, a domestic violence complaint or just as a result of an arrest following a motor vehicle offense. If police uncovered evidence during the search that resulted in additional charges, you may be able to avoid prosecution on them. Our defense firm, the Law Offices of Jonathan F. Marshall has over 100 years of collective experience that has resulted in many successful Motion to Suppress evidence applications where the evidence was seized incident to an arrest. The lawyers on our team, including former prosecutors, make sure that the police adhere to the strict guidelines to warrantless searches like one following an arrest. An attorney is always available to assist perspective clients and initial consultations are always without charge. A lawyer is available now at 1-877-450-8301 to provide you with the assistance you need concerning your charges in Passaic County, Hudson County, Bergen County, Essex County, Morris County, Union County, Middlesex County, Monmouth County, Ocean County, Mercer County or elsewhere in New Jersey.
NJ Law: Search Incident to Arrest
One of the exceptions that allow police to conduct a search without a warrant is where it occurs in conjunction with an arrest. The Warrant Requirement does not apply where this exception applies but there is can be a delicate scenario for police.
Arrest Must be Lawful for Exception to Apply
A prerequisite to the application of this exception is that police make a lawful arrest. If the law is violated in making the predicate arrest of the accused, law enforcement has no valid basis for a warrantless search. Accordingly, where there is no violation of law to support an arrest, a Motion to Suppress shall result in setting a later search aside. A similar result arises where an individual is arrested in accordance with a defective arrest warrant; the arrest is improper and so too the resulting search incident to the arrest.
A police officer was traditionally permitted to conduct a search of a car if he or she was arresting the driver or one of its occupants. The New Jersey Supreme Court eliminated this right, however, in 2006 in State v. Eckel. All warrantless motor vehicle searches following Eckel mandate the applicability of some other warrant exception like Plain View, protective sweep, inventory search. A state trooper or local police officer is banned from undertaking a search of a car without a warrant if his sole basis therefore is the arrest of an occupant or even the driver.
Search of Individual
If a person is properly placed under arrest, police possess the right to search the person of the defendant, including any clothing he or she is wearing. This authority does not include the ability to strip search or conduct a body cavity search of the defendant. Police may also search any packages (e.g. cigarette box), pocket book, purse, suitcase, or any item to which the accused was in possession at the time of arrest. Items of this nature which are not physically on the person of the defendant must be searched at the time of the arrest and should not be subject to search without a warrant if the arrestee is securely in custody (i.e. police have time to obtain a warrant). To proceed with a search after delay, the police must possess another basis allow for a warrantless search, the most common being an inventory search.
Search of Residence or Structure
Police have not right to search a house, apartment, place of employment or any other physical structure while effectuating an arrest. It should be noted, nonetheless, that police may undertake a search if some other exception arises during the course of the arrest, for example, plain view.
Do not hesitate to contact one of our attorneys if you require representation or further guidance in this matter. A lawyer will be happy to discuss exactly how we can defend you to avoid conviction.