A pretrial detainee has Fourth Amendment protection
against unlawful searches conducted to uncover incrimi-
nating evidence and not for institutional security concerns.
State v. Jackson, 321 N.J. Super. 365, 379-80 (Law Div.
1999).
N.J.S.A. 2A:161-1b, which permits a strip search when
the police have probable cause and an exception to the
warrant requirement exists, is not satisfied merely by an
arrest. The police must point to an exception to the
warrant requirement which comes into play after the arrest.
State v. Hayes, 327 N.J. Super. 373, 378 (App. Div. 2000).
R. Consequences of illegal search or seizure
When there has been an illegal search or seizure, the
remedy is to suppress at the trial any evidence which may
have been seized as a consequence. The illegal action does
not thereby taint the entire prosecution. United States v.
Crews, 445 U.S. 463, 477, 100 S.Ct. 1244, 1251, 63
L.Ed.2d 537 (1980) (illegal arrest did not taint in court
identification of defendant by witness); United States v.
Calandra, 414 U.S. 338, 351, 94 S.Ct. 613, 621, 38
L.Ed.2d 561 (1974) (exclusionary rule inapplicable to
grand jury proceedings); State v. Mulcahy, 107 N.J. 467,
482 (1987); State v. Egles, 308 N.J. Super. 124, 131 (App.
Div. 1998); State v. Battle, 256 N.J. Super. 268, 276-78
(App. Div. 1992), cert. denied, 130 N.J. 393 (1992)
(testimony about the reason for a defendant’s stop may be
introduced into evidence even if the tangible evidence
suppressed because of an illegal search); State v. Casimono,
250 N.J. Super. 173, 183-85 (App. Div. 1991), certif.
denied, 127 N.J. 558 (1992), cert. denied, 504 U.S. 924
(1992) (illegal search or detention does not bar a
conviction for assault, escape or other unlawful act
committed by the illegally detained person); State v.
Hyman, 236 N.J. Super. 298, 301 (App. Div. 1989) (illegal
arrest does not thereby invalidate defendant’s conviction
for violation of probation).
S. Civil liability for improper conduct
A cause of action may be brought by persons who have
been deprived of their federal or constitutional rights by
persons acting under color of state law. Gomez v. Toledo,
446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572
(1980). As such, police may be sued for violations of civil
rights if they act improperly. McKinney v. East Orange, 284
N.J. Super 639 (App. Div. 1995), certif. denied, 143 N.J.
519 (1996). Nonetheless, if the police reasonably believed
that probable cause existed at the time of their actions, they
are entitled to the defense of qualified immunity which
precludes liability under both 42 U.S.C. § 1983 and the
Tort Claims Act, N.J.S.A. 59:3-3. Wildoner v. Borough of
Ramsey, 162 N.J. 375, 386-87 (2000).IV. PROCEDURES REGARDING USE OF THE
EVIDENCE
A. The Motion to SuppressAn individual aggrieved by a search or seizure and
having reasonable grounds to believe that the evidence
obtained may be used against him or her in a criminal
setting must move before the trial court to suppress the
physical evidence seized. N.J. Ct. R. 3:5-7(a). When the
search is by warrant, the defendant must file a brief stating
the facts and arguments in support of the motion to
suppress. The State must file a responsive brief within 10
days. When the search was conducted without a warrant,
the State must file a brief within 15 days of defendant’s
motion including a statement of the facts “as it alleges them
to be.” N.J. Ct. R. 3:5-7(b).If there are codefendants who have filed motions to
suppress, the trial court must hold a single hearing to
determine the validity of the search unless there is good
cause for separate hearings. N.J. Ct. R. 3:5-7(c). An
evidentiary hearing may be held if material facts are in
dispute. State v. Kadonsky, 288 N.J. Super. 41 (App. Div.
1996), certif. denied, 144 N.J. 589 (1996). A defendant has
the constitutional right to be present at a hearing on the
motion to suppress. While a defendant may waive his or
her right to be present, the waiver must be a knowing and
voluntary one, evidenced either by defendant’s express
written or oral waiver placed on the record or by
defendant’s failure to appear after having received actual
notice in court of the date of the hearing. State v. Robertson,
333 N.J. Super. 499, 509-10 (App. Div. 2000). The notice
can be given at the arraignment/status conference where
dates for hearings on motions are set. Id. at 510 n.2; R. 3:9-
1(c).B. StandingAn “aggrieved person” who may file a motion to
suppress evidence is one who has a possessory, proprietary
or participatory interest in the seized evidence. State v.
Alston, 88 N.J. 211 (1981). A participatory interest in
seized property refers to the relationship of the evidence to
the underlying criminal activity and the defendant’s role in
the generation and use of the evidence. State v. Mollica,
114 N.J. 329, 339 (1989). While a defendant may have
standing to file the motion to suppress, he or she also must
demonstrate that his or her constitutional rights were
personally violated. State v. Bohuk, 269 N.J. Super. 581,