prospective buyers who entered defendant’s home and saw
marijuana in plain view did not violate defendant’s
reasonable expectation of privacy. State v. Ferrari, 323 N.J.
Super. 54, 58-59 (App. Div. 1999).
While a defendant had a reasonable expectation of
privacy in a pager’s memory, the circumstances of the case,
including a codefendant who had fled the scene and was
still at large after helping defendant commit a violent
robbery, and information revealing that a call had been
received justified the warrantless search of the pager. State
v. DeLuca, 325 N.J. Super. 376, 390-91 (App. Div. 1999),
certif. granted, 163 N.J. 79 (2000).
No search occurs when the police examine what is
“thrust into the public eye” such as the exterior of a car. A
vehicle identification number (VIN), located on the inside
of a car, is more akin to the exterior of a car than a glove
compartment or trunk because by law, the number is
required to be visible. Therefore, moving papers which
were placed over a VIN to obscure it is not a “search.” New
York v. Class, 475 U.S. 106, 114, 106 S.Ct. 960, 966-67, 89
L.Ed.2d 81 (1986). Similarly, moving a blanket which
covered the engine area of a pick-up truck is not a “search.”
State v. Ball, 219 N.J. Super. 501, 508 (App. Div. 1987).
Use of a narcotics sniffing dog to detect narcotics in luggage
at public airports is not a search. United States v. Place, 462
U.S. 696, 706-07, 103 S.Ct. 2367, 2644-45, 77 L.Ed.2d
110 (1983); State v. Cancel, 256 N.J. Super. 430, 436-37
(App. Div. 1992), certif. denied, 134 N.J. 484 (1993).
There is a divergence of opinion regarding whether use
of a forward looking infrared device (FLIR), an instrument
which detects heat sources and differences in temperatures,
is a search. The courts which have ruled that use of FLIR
is not a search have done so based upon the fact that there
is no expectation of privacy in heat “waste” that is vented
into the atmosphere. Compare United States v. Kyllo, 190
F.3d 1041, 1046 (9th Cir. 1999), cert. granted, 121 S.Ct. 29
(2000) (no constitutional violation); United States v.
Robinson, 62 F.3d 1325 (11th Cir. 1995), cert. denied, 517
U.S. 1220 (1996) (same); United States v. Ishmael, 48 F.3d
850 (5th Cir. 1995) (same); United States v. Myers, 46 F.3d
668 (7th Cir. 1995), cert. denied, 516 U.S. 879 (1995)
(same); United States v. Ford, 34 F.3d 992 (11th Cir. 1994)
(same); United States v. Pinson, 24 F.3d 1056 (8th Cir.
1994), cert. denied, 513 U.S. 1057 (1994) (same) with
People v. Deutsch, 52 Cal. Rptr.2d 366 (Ct. App. 1996)
(Fourth Amendment applies); Commonwealth v.
Gindelsperger, 743 A.2d 898 (Pa. 1999) (same); State v.
Young, 867 P.2d 593 (Wash. 1994) (same).
A seizure requires some detention of the individual
against his or her will. A seizure does not occur merely
because police approach an individual and ask a few
questions. Florida v. Bostick, 501 U.S. 429, 433, 111 S.Ct.
2382, 2386, 115 L.Ed.2d 389 (1991); State v. Davis, 104
N.J. 490, 497 (1986). Only when an officer, by means of
physical force or show of authority, has in some way
restrained the liberty of an individual has a seizure
occurred. Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct.
1868, 1879 n. 16, 20 L.Ed.2d 889 (1968); State v. Foley,
218 N.J. Super. at 214.With regard to a show of authority by an officer, no
seizure occurs under the federal constitution when the
suspect flees and does not yield. To constitute a seizure,
there must be actual physical restraint or compliance with
an order to stop. California v. Hodari D., 499 U.S. 621,
626, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991).
In New Jersey, however, a seizure occurs when, under all
the circumstances, “a reasonable person would feel that he
was not free to leave.” State v. Tucker, 136 N.J. 158
(1994)(rejecting Hodari D. on state constitutional
grounds); State ex rel. J.G., 320 N.J. Super. 21, 28 (App.
Div. 1999).An individual’s presence in a high crime area is
insufficient to provide reasonable, particularized suspicion
that the individual is committing a crime. Texas v. Brown,
443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).
Under the federal constitution, unprovoked flight at the
sight of police officers provides police with reasonable
suspicion that the individual is engaged in criminal activity
and justifies an investigatory stop. Illinois v. Wardlow, 528
U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570
(2000).In New Jersey, unprovoked flight at the sight of police
officers does not satisfy the reasonable particularized
suspicion test and cannot justify a stop. State v. Tucker, 136
N.J. at 168-70. However, flight may be a factor to consider
with all other surrounding circumstances, including a high
crime location, the time of the encounter and the officers’
knowledge of the defendant, to determine whether officers
have a reasonable and articulable suspicion that a defendant
was engaged in criminal activity. State v. Citarella, 154 N.J.
272, 281 (1998); State v. Morrison, 322 N.J. Super. 147,
154-55 (App. Div. 1999); State v. Ruiz, 286 N.J. Super.
155, 163 (App. Div. 1995), certif. denied, 143 N.J. 519
(1996) (stop valid when defendant, a known drug offender,
fled from officer he recognized in a location that was
known drug trafficking area); State v. Butler, 278 N.J.
Super. 93 (App. Div. 1994) (stop valid because of lateness
of hour, high crime area); State v. Ramos, 282 N.J. Super. at