samples. R. 3:5A-4; See State v. Johnson, 309 N.J. Super.
237 (App. Div.) (good faith use of R. 3:5A to obtain
physical evidence of suspected murder, kidnaping and
aggravated sexual assault from defendant), certif. denied,
156 N.J. 387 (1998); State v. Rolle, 265 N.J. Super. 482
(App. Div.) (conviction reversed where confession and
evidence obtained exceeded scope of R.3:5A detention),
certif. denied, 134 N.J. 562 (1993).
6. Motor Vehicles
A police officer’s suspicions concerning a motorist’s
responses to inquiries may justify a period of detention.
State v. Dickey, 152 N.J. at 479-80; State v. Chapman,
332 N.J. Super. 452 (App. Div. 2000). However,
detaining motorists for over two hours, without
articulable suspicion that the automobile contained
drugs, was unwarranted. State v. Dickey, 152 N.J. at 486.
See United States v. Sharpe, 470 U.S. at 675, 686-88, 105
S.Ct. at 1568, 1575-77, 84 L.Ed.2d at 605, 615-17
(twenty minute detention of vehicle was reasonable
especially since delay was mostly defendant’s fault); State
v. Chapman, 332 N.J. Super. 452 (forty-five minute
detention following stop was proper); see State v. Lark,
163 N.J. at 294 (where driver is without license and offers
false information in response to reasonable inquiry, driver
can be detained to discover identity, and if driver persists
in concealment, driver can be taken into custody).
X. RESISTING ARREST (See also, OBSTRUC-
TION OF JUSTICE and RESISTING ARREST,
this Digest)
N.J.S.A. 2C:29-2 provides that a person is guilty of
resisting arrest if he purposely prevents a law enforcement
officer from effecting a lawful arrest. See, State v. Parsons,
270 N.J. Super. 213 (App. Div. 1994). If the officer was
acting in his official capacity and announced his
intention to arrest prior to the resistence, it is no defense
that the arrest was illegal. N.J.S.A. 2C:29-2a; State v.
Seymour, 289 N.J. Super. at 85.
It is a disorderly persons offense to resist arrest where
the accused flees from a police officer to prevent arrest
even though he did not use physical force against the
police officer. 2C:29-2(a); Parsons, 270 N.J. Super. at
- The crime of resisting arrest becomes a fourth
degree crime if the suspect threatens to use physical force
or violence against the police or another person. N.J.S.A.
2C:29-2 a(1)-(2); State v. Parsons, 270 N.J. Super. at 213.
The crimes of resisting arrest and aggravated assault do
not merge. Parsons, 270 N.J. Super. at 222; State v. Battle,
256 N.J. Super. 268 (App. Div.), certif. denied, 130 N.J.
393 (1992).The crime of eluding arrest by use of motor vehicle or
boat is a crime of third degree and becomes a crime of
second degree upon risk of bodily injury or death to any
person. State v. Wallace, 158 N.J. 552 (1999); State v.
Green, 318 N.J. Super. at 361 (second degree offense
where defendant struck police officer with car and fled on
foot). ‘Injury’ in the second degree crime of eluding is
defined as risk of “bodily injury.” State v. Wallace, 158
N.J. at 558.If a citizen resists arrest, the police officer has the right
and duty to employ the force reasonably necessary to
overcome the resistence and make the arrest. State v.
Mulvihill, 57 N.J. 151, 156 (1970). If the police officer
uses excessive and unnecessary force in making an arrest,
the citizen may counter with the use of force which is no
greater than reasonably appears necessary. Id. at 156;
N.J.S.A. 2C:3-4b(1)(a). If the person knows that his or
her submission to the arrest will result in the police
officer’s ceasing to use unlawful excessive force, he or she
must desist from the physically defensive actions or lose
the privilege of self-defense. State v. Mulvihill, 57 N.J. at
157.XI. USE OF FORCE IN MAKING ARREST (See also, POLICE and DEFENSES, this Digest)
If a police officer uses excessive force in effecting an
arrest, with the purpose of injuring the suspect, the
officer may be charged with official misconduct in office
under N.J.S.A. 2C:30-2. State v. Lore, 197 N.J. Super.
277 (App. Div. 1984). See N.J.S.A. 2C:3-7 (limitations
on use of force); N.J.S.A. 2C:3-9 (defense of use of force
not justified where reckless or negligent and/or causes
injury to innocent party, or erroneous underlying arrest);
Graham v. Conner, 490 U.S. 386, 443 S.Ct. 1865, 104
L.Ed.2d 109 (1989) (the use of excessive force is
measured by objective reasonableness under totality of
circumstances); Tennessee v. Garner, 471 U.S. 1, 105
S.Ct. 1694, 85 L.Ed.2d 1 (1985) (deadly force may not
be used unless it is necessary to prevent an escape and the
police officer has probable cause to believe that the
suspect has committed a crime involving the infliction or
threatened infliction of serious physical harm, or poses a
threat of serious physical harm either to the officer or
other).