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New Jersey Appellate Division Upholds Validity of Second Pat-Downs

— March 11, 2022

Jersey City, New Jersey — On September 17, 2021, the Superior Court of New Jersey, Appellate Division ruled that officers may conduct a second pat-down of an individual during a traffic stop when the first one is unproductive if the officer believes the suspect is armed and dangerous. 

In this case, two police officers lawfully pulled over two individuals in a car for speeding and making excessive noise at night. The defendant, in this case, was a passenger. The State alleged the defendant was acting suspiciously by repeatedly moving his hands near his pocket and disobeying commands; the defendant denied both. Police patted him down and searched the vehicle, but found nothing. A few minutes later, the officers patted down the defendant again and found a firearm and a bag of suspected drugs.

The police did not violate the defendant’s rights by requiring him to step out of the car because, under the totality of the circumstances, officers can require passengers to step out of the vehicle in a similar situation. In addressing the second pat-down, the court stated that it is not enough to justify a second pat-down for an officer to have reason to believe a suspect might be hiding something, that something has to be a weapon. 

New Jersey law does not explicitly address second pat-downs. However, the court concluded officers may conduct a second pat-down if the officer is motivated by safety goals, under the totality of the circumstances. The “totality of circumstances” means considering all relevant facts, if looked at as a whole, give the officer reason to reason to believe s/he is in danger. More importantly, the court stated that the first pat-down, if correctly performed, should determine whether or not the individual is armed and dangerous, making the second pat-down unjustifiable even if the suspect acts nervously. Only if new facts come to light creating a reasonable fear for the officer’s safety, is a second pat-down justifiable.

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For example, in State v. Doren, the officers smelled marijuana and conducted a first pat-down and found nothing. A few minutes later, the defendant brushed up against the officer, and the officer felt a hard object near the defendant’s hip. With the new facts, the officer conducted a second pat-down. The court found this second pat-down to be justified. The second pat-down is justifiable when the first pat-down is incomplete, especially if new facts are present. The courts give much weight to the first pat-down. When the first pat-down results in the officers finding nothing, only new facts creating a fear the individual is carrying a weapon justify a second pat-down.

From a criminal defense lawyer’s perspective, we would always be looking at whether there were facts justifying the first pat-down, how the pat-down was conducted, and what new facts, if any, came to light after the first pat-down. We would also examine whether the officer should have known those facts before the first pat-down and just reserved them for a second chance. 

If you are charged with a crime resulting from a traffic stop and believe your rights were violated, contact our attorneys at the Law Office of Eric M. Mark.

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