cdTOCtest

N.J. 1 , 11-12 (1979); State v. Ercolano, 79 N.J. 25, 33-34
(1979) (impoundment of car parked legally on street after
defendant’s arrest and over his objection improper). Even
if the car is properly impounded, the police inventory of the
vehicle in conformance with routine police procedures will
be deemed “flawed” unless the police discuss the
disposition of the vehicle’s contents with the owner or
temporary custodian and allow the owner/custodian to
make other arrangements for the disposition of the
property. State v. Mangold, 82 N.J. 575, 585-87 (1980);
State v. Padilla, 321 N.J. Super. 96, 110-12 (App. Div.
1999), aff’d. o.b., 163 N.J. 3 (2000).

N. Open Fields

Observations of potentially criminal activity made
from open fields do not violate the fourth amendment.
United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94
L.Ed. 326 (1987); State v. Citta, 208 N.J. Super. 208, 215
(Law Div. 1990), aff’d. sub nom. State v. Fuhs, 265 N.J.
Super. 188, 190 (App. Div. 1993), certif. denied, 134 N.J.
486 (1993); Health Dept. v. Rehsler, 235 N.J. Super. 262,
266-67 (Law Div. 1989).

O. “Special Needs” searches

In limited circumstances, where the privacy interests
implicated by a search are minimal and where an important
governmental interest furthered by the intrusion would be
placed in jeopardy by the requirement of individualized
suspicion, a search may be conducted in the absence of a
warrant and individual suspicion.

Using this theory, the courts have upheld drug testing
of school athletes, Vernonia School District 475 v. Acton,
515 U.S. 646, 653, 115 S.Ct. 2386, 2391, 132 L.Ed.2d 564
(1995); drug testing of railway employees, Skinner v.
Railway Labor Executives Assn, 489 U.S. 602, 624, 109
S.Ct. 1402, 1417, 103 L.Ed.2d 685 (1989); the search of a
probationer’s home based on less than probable cause,
Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164,
3168, 97 L.Ed.2d 709 (1987); the search of an employee’s
office on less than probable cause when the reason for the
search is for work-related, non-investigatory purpose or to
conduct an investigation regarding work-related miscon-
duct O’Connor v. Ortega, 480 U.S. 709, 723-25, 107 S.Ct.
1492, 1500-01, 94 L.Ed.2d 714 (1987); a search in a
school context if reasonable under all the circumstances,
New Jersey v. T.L.O., 469 U.S. 325, 340-41, 105 S.Ct. 733,
742, 83 L.Ed.2d 720 (1985); Desilets v. Clearview Regional
Bd. of Educ., 265 N.J. Super. 370 (App. Div. 1993)
(upholding public school policy which subjected to a
search for alcohol and drugs all hand luggage carried by

students prior to a field trip); HIV and AIDS testing of

accused and convicted sex offenders, State in the Interest of

J.G., 151 N.J. 565, 577 (1997) and drug testing of police

officers, New Jersey Transit PBA Local 304 v. New Jersey

Transit Corp., 151 N.J. 531, 558-65 (1997). But see

Ferguson v. City of Charleston, ___ U.S. ___ (2001) (no

special need demonstrated for testing of urine of pregnant

women for cocaine in view of policy’s law enforcement

purpose); Chandler v. Miller, 520 U.S. 305, 313-14, 117

S.Ct. 1295, 137 L.Ed.2d 513 (1997) (no special need

demonstrated which would authorize drug test of

candidates).

The testing of an accused or convicted juvenile or

adult sex offender for the HIV virus or AIDS, pursuant to

N.J.S.A. 2A:4A-43.1 and N.J.S.A. 2C:43-2.2, is permis-

sible under the special needs test if the State demonstrates

probable cause to believe there has been possible transfer of

bodily fluids. State in the Interest of J.G., 151 N.J. at 590.

However, the test results may not be admitted into

evidence at a criminal trial. Id. at 579.

P. Searches involving regulated industries

In closely regulated industries where privacy interests

are weakened and the governmental interest in regulating

the business is heightened, a warrantless inspection of the

premises is constitutional where there is a substantial

governmental interest informing the regulatory scheme,

the warrantless inspection is necessary to further the

regulatory scheme and the inspection scheme, in terms of

regulation and certainly of application, provides a

substitute for a warrant by advising the owner that the

search is being made pursuant to statute and by limiting the

discretion of the officers conducting the inspection. New

York v. Burger, 482 U.S. 691, 702-03, 107 S.Ct. 2636,

2644, 96 L.Ed.2d 601 (1987).

Q. Corrections context

The Fourth Amendment proscription against unrea-

sonable searches does not apply to searches of a cell by

prison guards. Privacy rights for convicted prisoners

“cannot be reconciled with the concept of incarceration

and the needs and objectives of penal institutions.” Hudson

v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d

393 (1984). The Court based its decision upon the fact

that weapons, drugs and other contraband present a danger

to order in the prison environment and therefore, the

prisoner’s expectation of privacy would yield to the

paramount interest of prison security. Id. at 528, 104 S.Ct.

at 3201, 82 L.Ed.2d 393.