application for assigned counsel or make a showing of
indigence. On appeal, the Law Division granted her
application for assigned counsel and she was represented
on the appeal. The Appellate Division found that the
aggregate financial penalties to which defendant was
subject ($1,800) gave rise to a right to counsel under
Rodriguez v. Rosenblatt, 58 N.J. 281 (1971) as it was a
“consequence of magnitude.”
State v. Dwyer, 229 N.J. Super. 531, 540 (App. Div.
1989), a prosecution under N.J.S.A. 2C:33-2a(2), it was
held that a trial judge’s obligation to advise a pro se
defendant of his right not to testify applies to disorderly
person and non-indictable offenses as well as to indictable
offenses.
C. Search and Seizure; Arrest
1. Strip Searches
No strip search may be conducted upon a person who
has been detained or arrested for a disorderly or petty
disorderly offense, unless the search is authorized by a
warrant or the consent of the persons to be searched; there
is probable cause to believe that a weapon, controlled
dangerous substance, or evidence of a crime will be found;
or the person is lawfully detained in an adult correctional
facility and the search is based on reasonable suspicion
that a weapon or drugs will be found. N.J.S.A. 2A:161A-
2. Body Cavity Searches
No body cavity search may be conducted upon a
person who has been detained or arrested for the
commission of a disorderly or petty disorderly persons
offense unless the search is authorized by a warrant or
consent of the person, or the person is lawfully detained
in a adult correctional facility and is based on reasonable
suspicion that a weapon or drugs will be found. N.J.S.A.
2A:161A-2.
In State v. Hayes, 327 N.J. Super. 373 (App. Div.
2000), the Appellate Division reversed defendant’s drug
and related convictions, including using a remotely-
activated paging device while engaged in the commission
of a drug related offense under N.J.S.A. 2C:33-20. Police
had arrested defendant on an outstanding warrant, and a
pat-down search revealed a pager and more than $1,000
in cash. Defendant, a prior drug offender, tried to reach
into the back of his pants while handcuffed; the police
knew that he often carried drugs there, and at
headquarters a warrantless search revealed cocaine in his
anus. However, the State had not complied with the
requirements of N.J.S.A. 2A:161A-1, which requires
reasonable suspicion for strip searches and was adopted to
provide greater protection than that the Fourth
Amendment provides. The Appellate Division thus
concluded that N.J.S.A. 2C:161A-1 prohibited a strip
search of defendant because there were no recognized
exceptions to the warrant requirement, section 1b, and
defendant was not “confined in a municipal detention
facility.” Section 1c. The court also concluded that
defendant was subjected to an unlawful “body cavity
search” because he was not “confined in an adult county
correctional facility.” Section 2b. Finally, the court
rejected the State’s claim that the drugs should be
admissible under the inevitable discovery rule.In State v. Holland, 328 N.J. Super. 1 (App. Div.
2000), the Appellate Division consolidated defendants’
cases to consider whether the police can knock on the
door of a residence and enter without a warrant if they
smell burning marijuana emanating from it. Here,
probable cause existed to believe that people in the
residence possessed an unknown quantity of marijuana
once the officers smelled it, but such possession, a
disorderly persons offense, was a “minor offense” for
purposes of a warrantless home search. The court found
that the need to search for the drugs or arrest defendants
did not constitute exigent circumstances that, coupled
with probable cause, justified warrantless entries of
homes. While suppressing the evidence seized in the
Califano case, the court remanded the Holland matter for
a determination of whether the drugs seized were
nonetheless admissible pursuant to an “independent
source” analysis.In State v. Vonderfecht, 284 N.J. Super. 555 (App.
Div. 1995), the Appellate Division, reversing the trial
court, ruled that police have the authority to arrest an
individual for a petty disorderly persons offense
committed in the view of the officer under N.J.S.A.
40A:14-152, which allows the arrest of any disorderly
person. It found that an inventory search pursuant to a
lawful arrest for a petty disorderly persons offense was
proper and the controlled dangerous substance found
during that search should not have been suppressed.IV. SENTENCING
N.J.S.A. 2C:43-8, authorizing the disposition for
disorderly persons and petty disorderly persons provides
that the sentence shall not exceed 6 months in the case of
a disorderly persons offense or 30 days in the case of a
petty disorderly offenses.