Search and Seizure: Terry Stop, Reasonable and Articulable Suspicion, Article I Paragraph 7, Carty Consent Search Rule

NJ Search and Seizure: Terry, Article I Paragraph 7, and Carty

Search and seizure law is a core NJ LEE topic because NJ's State Constitution provides broader protection than the Fourth Amendment in several critical areas. Two sources of authority apply in every NJ search case: (1) the U.S. Constitution, Fourth Amendment, and (2) the NJ Constitution, Article I, Paragraph 7. The text of Article I, Paragraph 7 mirrors the Fourth Amendment ("The right of the people to be secure... against unreasonable searches and seizures..."), but the NJ Supreme Court has interpreted it independently to afford greater protection where sound public policy supports it. When state law is more protective, the state rule controls in NJ courts.

The Terry Stop

A Terry stop (Terry v. Ohio, 1968) is a brief, limited investigative detention short of arrest. The standard is reasonable and articulable suspicion (RAS) — less than probable cause, more than a hunch. The officer must be able to point to specific and articulable facts that, taken with rational inferences from those facts, reasonably suggest criminal activity is afoot. NJ adopted the Terry framework under its own constitution in State v. Davis, 104 N.J. 490 (1986) and has reaffirmed it in State v. Dangerfield and other cases.

Terry Frisk for Weapons

If the officer has RAS of criminal activity AND a reasonable, articulable concern for officer safety, the officer may conduct a limited pat-down of the outer clothing to discover weapons. Key limits:

• The frisk is for weapons only, not for evidence
• The officer may reach into clothing only when the object felt is immediately apparent as a weapon (the "plain feel" doctrine — State v. Hawkins)
• If the officer feels contraband that is immediately apparent as such, the seizure may be valid; if the officer manipulates the object to identify it, the search exceeds Terry's scope
• The stop must be reasonably brief; continued detention requires probable cause for arrest

RAS vs Probable Cause — The LEE Distinction

The LEE will give a fact pattern and ask whether RAS or probable cause was required. A stop based on a "gut feeling," an anonymous tip without corroboration, or mere presence in a high-crime area is not RAS by itself. NJ requires articulable facts — conduct, descriptions, furtive movements, or matching a BOLO.

Article I, Paragraph 7 — NJ's Broader Protection

NJ courts have used Article I, Paragraph 7 to go beyond the federal floor in several ways the LEE tests:

1. Consent searches of motor vehicles (State v. Carty, 183 N.J. 293 (2001)) — discussed below
2. Warrantless home arrests — NJ restricts warrantless arrests in the home for non-indictable offenses (State v. Brown)
3. K-9 sniffs — NJ treats a dog sniff of a vehicle as a search requiring RAS (State v. Cancel)
4. Protective sweeps — NJ applies a higher, more specific standard for protective sweeps of a home
5. Auto inventory searches — NJ imposes stricter safeguards

The key principle: when the NJ Supreme Court has interpreted Article I, Paragraph 7 to require more, that state rule is the operative rule in NJ, even if federal law would allow the search.

State v. Carty — The Consent Search Rule

State v. Carty, 183 N.J. 293 (2001) is the single most-tested NJ search case on the LEE. Carty established two rules under Article I, Paragraph 7 that are broader than the Fourth Amendment:

Rule 1: Reasonable Articulable Suspicion to Request Consent

During a lawful motor vehicle stop, an officer may not request consent to search the vehicle absent reasonable and articulable suspicion of criminal activity. Under the Fourth Amendment (Schneckloth v. Bustamonte), an officer may ask for consent during any lawful stop with no suspicion required. NJ rejected that — under Carty, the consent request itself requires RAS. Without it, any consent obtained is invalid under the State Constitution.

Rule 2: Passenger Cannot Consent to Vehicle Search

A passenger in a motor vehicle lacks common authority over the vehicle and therefore cannot give valid consent to search the vehicle. Only the driver (operator/owner) with common authority over the vehicle may consent. A passenger's consent does not cure a Carty problem — if the officer relied on the passenger's "yes," the search is invalid.

The Practical Effect

For an NJ officer conducting a lawful traffic stop:

• Build RAS before asking to search — observations, furtive movements, odor, visible contraband, inconsistencies in the occupants' stories
• Ask the driver, not the passenger, for consent
• If only the passenger consents and no RAS exists, the search is invalid — even if the passenger handed over the keys

The Carty holding was later reinforced and refined in State v. Pine, 196 N.J. 603 (2008), which extended the RAS requirement to consent requests directed at passengers themselves (e.g., asking to search a passenger's person or belongings requires RAS).

Why the LEE Tests This

Carty is a high-yield topic because it is a clear example of NJ constitutional law diverging from federal law. The LEE will present a traffic stop, an officer asking "can I look in your car?", and test whether: (1) the officer had RAS, (2) the right person consented, and (3) the search is valid under Article I, Paragraph 7. Know the case name, the year (2001), and the two holdings cold.