State of New Jersey v. Robert L. Evans ( 2017 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0489-14T1
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,          APPROVED FOR PUBLICATION
    February 28, 2017
    v.
    APPELLATE DIVISION
    ROBERT L. EVANS,
    Defendant-Appellant.
    _____________________________________
    Argued June 1, 2016 – Decided February 28, 2017
    Before Judges Fisher, Espinosa and Rothstadt.
    On appeal from Superior Court of New Jersey,
    Law Division, Cumberland County, Indictment
    No. 12-05-0572.
    Margaret McLane, Assistant Deputy Public
    Defender, argued the cause for appellant
    (Joseph E. Krakora, Public Defender, attorney;
    Ms. McLane, of counsel and on the briefs).
    Elizabeth K. Tornese, Assistant Prosecutor,
    argued the cause for respondent (Jennifer
    Webb-McRae, Cumberland County Prosecutor,
    attorney; Ms. Tornese, of counsel and on the
    brief).
    Appellant filed a pro se supplemental brief.
    The opinion of the court was delivered by
    ESPINOSA, J.A.D.
    Defendant was arrested – not for a crime – but on a warrant
    for failure to pay a $6.50 traffic fine, and subjected to a strip
    search.      In   N.J.S.A.    2A:161A-1,      the   Legislature     established
    requirements, designed to provide greater protection than the
    Fourth Amendment, that must be satisfied before a strip search may
    be conducted under such circumstances.              See, State v. Hayes, 
    327 N.J. Super. 373
    , 381 (App. Div. 2000). In the absence of a warrant
    or consent, the statute prohibits a strip search of a person who
    has been "detained or arrested for commission of an offense other
    than a crime" unless the search is based on probable cause and "a
    recognized    exception      to    the   warrant    requirement."      N.J.S.A.
    2A:161A-1(b).     Guidelines issued by the Attorney General's Office 1
    set forth even more exacting criteria to be satisfied before a
    strip search is conducted.
    In this appeal, we consider the application of the "plain
    feel"     exception   to     the    warrant    requirement,    Minnesota       v.
    Dickerson, 
    508 U.S. 366
    , 
    113 S. Ct. 2130
    , 
    124 L. Ed. 2d 334
    (1993);
    State v. Jackson, 
    276 N.J. Super. 626
    , 628 (App. Div. 1994), to
    the strip search that was conducted.           For the reasons that follow,
    we conclude the plain feel exception did not apply and, further,
    1
    New Jersey Office of the Attorney General, Attorney General's
    Strip Search and Body Cavity Search Requirements and Procedures
    for Police Officers (July 1995) (the Attorney General Guidelines
    or      the     Guidelines)      can      be     located     at:
    http://www.state.nj.us/lps/dcj/agguide/3strpsch.pdf.
    2
    A-0489-14T1
    that   the   seizure    of   drugs   from     defendant's   person    was   not
    objectively reasonable.       We also reverse defendant's convictions
    and remand for a hearing to determine whether the search of an
    automobile pursuant to a search warrant was sufficiently free of
    taint from the unlawful search and seizure.
    I.
    Defendant was arrested on an outstanding warrant for failure
    to pay a $6.50 fine.      In the search incident to arrest, the officer
    seized approximately $2,000 from defendant's person, observed a
    bulge in the groin area of defendant's pants and manipulated the
    bulge.    Defendant was taken to the police station where he was
    subjected to a strip search.             The strip search resulted in the
    recovery of two rocks of crack cocaine totaling 0.56 ounces and
    nine bags of heroin containing approximately 0.018 grams each.                 A
    search warrant was obtained for the car defendant had been driving.
    Execution of that warrant resulted in the seizure of a gun and
    hollow nose bullets.
    After defendant's motion to suppress evidence was denied, a
    jury convicted him of second-degree unlawful possession of a
    firearm, N.J.S.A. 2C:39-5(b), (count one); third-degree possession
    of a controlled dangerous substance (heroin and cocaine), N.J.S.A.
    2C:35-10(a)(1), (counts two and three); second-degree possession
    with   intent   to     distribute    a    controlled   dangerous     substance
    3
    A-0489-14T1
    (cocaine),   N.J.S.A.    2C:35-5(b)(2),     (count     four);   third-degree
    possession   with   intent   to   distribute    a     controlled    dangerous
    substance (heroin), N.J.S.A. 2C:35-5(b)(3) (count five); fourth-
    degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f)
    (count   six);   second-degree    possession    of    a   firearm   during    a
    controlled dangerous substances offense, N.J.S.A. 2C:39-4.1(a)
    (count seven); and second-degree certain persons possession of a
    firearm, N.J.S.A. 2C:39-7(b)(1), (count eight). After appropriate
    mergers, defendant was sentenced to an aggregate term of forty
    years with a twenty-year period of parole ineligibility.
    Defendant appeals from the denial of his suppression motion,
    his judgment of conviction and his sentence, raising the following
    arguments for our consideration:
    POINT I
    THE   COURT   ERRED    IN   DENYING
    DEFENDANT'S MOTION TO SUPPRESS THE
    DRUGS FOUND ON HIS PERSON AND THE
    GUN FOUND IN THE CAR. U.S. CONST.
    AMEND. IV, XIV; N.J. CONST. ART. 1,
    PARA. 7.
    A.   THE    DRUGS      MUST       BE
    SUPPRESSED.
    B.   THE    GUN        MUST       BE
    SUPPRESSED.
    POINT II
    THE EXPERT'S TESITMONY [SIC] WHICH
    WAS NOT HELPFUL AND EMBRACED THE
    ULTIMATE ISSUE, COMBINED WITH THE
    4
    A-0489-14T1
    COURT'S INADEQUATE EXPERT WITNESS
    JURY     INSTRUCTIONS      DEPRIVED
    DEFENDANT OF HIS RIGHT TO A FAIR
    TRIAL AND DUE PROCESS OF LAW. (Not
    Raised Below).
    A.     INTRODUCTION.
    B.   THE     STATE'S     EXPERT
    OVERSTEPPED THE LIMITS OF ODOM[2] AND
    HIS   ULTIMATE    ISSUE    TESTIMONY
    SEVERELY PREJUDICED THE DEFENSE.
    C.   THE     USE    OF     THE
    HYPOTHETICAL WAS IMPROPER BECAUSE
    IT DID NOT ASSIST THE JURY AND THE
    RISK   OF   UNDUE   PREJUDICE   FAR
    OUTWEIGHED ANY PROBATIVE VALUE.
    D.   THE STATE'S EXPERT SHOULD
    NOT HAVE BEEN PERMITTED TO TESTIFY
    THAT DRUG DEALERS CARRY GUNS BECAUSE
    IT WAS NOT HELPFUL TO THE JURY AND
    INTERFERED WITH THE JURY'S ABILITY
    TO SEPARATELY CONSIDER THE DRUG
    POSSESSION   AND    GUN   POSSESSION
    CHARGES.
    E.   THE    STATE'S     EXPERT
    IMPROPERLY INTRODUCED IRRELEVANT
    AND HIGHLY PREJUDICIAL TESTIMONY
    IMPLYING THAT DEFENDANT WAS A MID-
    TO UPPER-ECHELON DEALER WHERE THERE
    WAS NO EVIDENCE TO SUPPORT THAT
    OPINION.
    F.     CONCLUSION.
    POINT III
    IT WAS PROSECUTORIAL MISCONDUCT TO
    FALSELY CLAIM THAT THE EXPERT HAD
    OPINED THAT DEFENDANT'S MONEY WAS
    2
    State v. Odom, 
    116 N.J. 65
    (1989).
    5
    A-0489-14T1
    FROM THE SALE OF DRUGS.   (Partially
    Raised Below).
    POINT IV
    DEFENDANT WAS DENIED A FAIR TRIAL BY
    THE COURT'S MANAGEMENT OF VOIR DIRE,
    WHICH MAY HAVE HAD A CHILLING EFFECT
    ON THE JURORS' WILLINGNESS TO SPEAK
    FREELY. N.J. CONST. ART. 1, PARAS.
    9, 10.
    POINT V
    THE CUMULATIVE IMPACT OF THE ERRORS
    DENIED DEFENDANT A FAIR TRIAL.
    POINT VI
    DEFENDANT'S SENTENCE IS EXCESSIVE
    AND MUST BE VACATED BECAUSE THE
    COURT   FAILED   TO    CONDUCT  ANY
    YARBOUGH[3]  ANALYSIS,   FAILED  TO
    ADDRESS MITIGATING FACTORS, ENGAGED
    IN IMPERMISSIBLE DOUBLE COUNTING,
    AND IMPOSED THE MAXIMUM SENTENCE ON
    ALL COUNTS.
    A.   THE  COURT  ERRONEOUSLY
    IMPOSED A CONSECUTIVE SENTENCE ON
    COUNT EIGHT.
    B.   THE   COURT   FAILED   TO
    ADDRESS   ANY  MITIGATING   FACTORS
    REQUESTED BY THE DEFENSE.
    C.   THE   COURT   ENGAGED IN
    IMPERMISSIBLE DOUBLE COUNTING BY
    IMPOSING AN EXTENDED TERM AND THE
    MAXIMUM LEGAL SENTENCE.
    3
    State v. Yarbough, 
    100 N.J. 627
    (1985), cert. denied, 
    475 U.S. 1014
    , 
    106 S. Ct. 1193
    , 
    89 L. Ed. 2d 308
    (1986)
    6
    A-0489-14T1
    D.   THE      SENTENCE        IS
    MANIFESTLY EXCESSIVE.
    Defendant    raised   the   following   argument   in   a
    supplemental pro se brief:
    THE COURT ERRED AND DENIED APPELLANT
    A FAIR TRIAL, UNDER THE FIFTH, SIXTH
    AND FOURTEENTH AMENDMENTS TO THE
    UNITED   STATES   CONSTITUTION   AND
    UNDER ARTICLE I, PARAGRAPH 10 OF THE
    NEW JERSEY CONSTITUTION, WHEN THE
    TRIAL COURT FORCED APPELLANT TO
    STAND    TRIAL     IN    RESTRAINTS.
    DEFENDANT'S FUNDAMENTAL RIGHT TO A
    FAIR TRIAL WAS VIO[]LATED WHEN HE
    WAS COMPELLED AT TRIAL TO APPEAR
    BEFORE THE JURY WITH HIS FEET
    SHACKLED.
    We reverse the denial of defendant's motion to suppress the
    evidence seized from his person and the convictions that depend
    upon that evidence: counts two, three, four, five and seven.             We
    also reverse defendant's convictions for: possession of a firearm
    (count one), possession of hollow nose bullets (count six) and
    certain persons weapons possession (count eight) and remand for
    the trial court to conduct a hearing to determine whether the
    search warrant obtained for the search of the automobile is free
    of the taint from the unlawful strip search.      As a result, we need
    not address the arguments presented in Points II and VI.               The
    arguments raised in Points III, IV and V lack sufficient merit to
    warrant discussion.    R. 2:11-3(e)(2).
    7
    A-0489-14T1
    II.
    The   facts   elicited     at    the    suppression    hearing    can   be
    summarized as follows.
    Officer   Felipe   Laboy    of    the     Vineland    Police   Department
    testified he performed a "warrant check" on an irregular basis to
    see what new warrants had been issued and did so at the beginning
    of his shift on January 4, 2012.            He prepared a list of the names
    of persons with outstanding warrants, which included defendant.
    He did not know the reason for the warrant for defendant.4
    While on patrol that evening, Laboy observed defendant5 drive
    onto the west side of the Days Inn property and back into a parking
    stall.   When defendant saw the officers on the property, he pulled
    out of the parking stall and drove away.             Laboy and his partner
    followed defendant to pull him over and place him under arrest for
    the warrant. Defendant was not under investigation for any offense
    at that time. However, it was Laboy's intention to issue a summons
    for trespassing if defendant did not have a room at the Days Inn.
    4
    On cross-examination at trial, Laboy was presented with the
    warrant and confirmed that the warrant was a traffic warrant,
    rather than a criminal warrant, issued on May 26, 2010, for $6.50.
    5
    Laboy testified he knew defendant and was aware he had been
    arrested for burglary and possession of marijuana in July 2011.
    8
    A-0489-14T1
    After placing defendant under arrest, Laboy confirmed there
    was an active warrant for him.        He did not, however, determine
    what the warrant was for.
    Laboy proceeded to search defendant. He testified, "It wasn’t
    a patdown search; it was an actual search.          It was a search
    incident to arrest."     He recovered "a little over $2,000" from
    defendant's pocket.    Laboy observed a bulge in defendant's pants.
    When defendant stated he did not know what the bulge was, Laboy
    felt the bulge in defendant's groin area and manipulated it.        He
    was questioned about the bulge as follows:
    Q.   Can you describe what, if anything, you
    felt?
    A.   It felt like a rocklike substance.
    Q.   Now, prior to arresting Mr. Evans, did
    you have any information that he was
    carrying drugs on him? In fact, did you
    pull him over for drugs that evening?
    A.   No.
    Q.   Now, when you felt those rocklike
    substances, what if anything did you
    believe that was?
    A.   Crack cocaine.
    [(Emphasis added).]
    Laboy's testimony reveals little about the size or shape of
    the bulge he manipulated and the drugs he recovered:
    Q.   And can you describe what was recovered
    from that area?
    9
    A-0489-14T1
    A.   He had two bags -- two bags which
    consisted -- which contained a rocklike
    substance. And he had nine baggies which
    were tied together in a rubber band. And
    each baggie consisted of a wax paper bag
    with a powdery substance inside the bag.
    Q.   So this was a larger item that was there?
    A.   No.   No, they were about maybe this big.
    Q.   The heroin?
    A.   Yeah, the heroin is not big at all.
    Because the bulge was located between defendant's underwear
    and his pants, retrieval of the item was likely to entail exposing
    some of defendant's underwear.    Laboy understood the search would
    then be considered a strip search and that he required permission
    from a station house commander.       He received that consent from
    Sergeant Landi, who had arrived at the scene.     Laboy also called
    for a K-9 unit before leaving to transport defendant to the police
    station.
    At the station, Laboy unbuckled defendant's pants and reached
    down to his groin area where he recovered two bags containing a
    rocklike substance and nine baggies containing a powdery substance
    that were tied together.      Laboy was asked again about what he
    perceived the discovery to be:
    Q.   And what did you suspect those items to
    be once you saw them?
    A.   Crack cocaine and heroin.
    10
    A-0489-14T1
    [(Emphasis added).]
    Laboy could not recall if he learned the reason for the
    outstanding warrant for defendant before or after the strip search.
    He was unable to say whether he made any effort to determine
    whether the warrant was for an indictable offense or a disorderly
    persons offense, let alone the failure to pay a traffic fine.      He
    testified he did not really care what the warrant was for; his
    "main focus" was to retrieve the items from defendant's groin
    area.
    A summons was issued to defendant for trespassing based upon
    his driving onto the Days Inn property.    The police department had
    an   established    procedure   to    follow   regarding   suspected
    trespassers.    Laboy testified he followed that procedure; his
    report did not corroborate that.      Laboy was unable to state with
    certainty that there were any "No Trespassing" signs in the front
    of the motel.   The manager of the motel testified there were none
    in front and that she would not have called police if a driver
    merely drove onto the property and departed.
    Laboy obtained a search warrant for the vehicle.      No drugs
    were recovered.    Instead, a loaded .38 revolver with hollow nose
    ammunition was seized from the glove compartment.
    In denying defendant's motion to suppress the cocaine and
    heroin, the motion judge found Laboy had probable cause to conduct
    11
    A-0489-14T1
    a traffic stop and arrest defendant on the outstanding warrant.
    The judge found credible Laboy's testimony that he "found a bulge
    close   to   the   defendant's    groin,   between   his   pants   and   the
    underwear, that felt like a rock-like substance," and "immediately
    recognized that the rock-like substance, based on his training and
    experience of numerous times feeling the same type of material
    . . . was crack cocaine."        (Emphasis added).
    As to the strip search, the court held probable cause existed
    due to "the totality of the circumstances that arose during the
    lawful search[] incident to arrest."       Those circumstances included
    Laboy's "knowledge of defendant's prior drug activity" and the
    discovery of "a large amount of money" on the defendant.                 The
    judge found the "plain feel" exception to the warrant requirement
    was satisfied and therefore, Laboy "was permitted to request a
    strip search."       Noting the strip search was conducted after
    permission was granted by the station commander the trial judge
    erroneously concluded the search was "conducted in accordance with
    the Attorney General's guidelines."6
    6
    The trial judge was apparently referring to Section III of the
    Guidelines, which governs the procedures to be followed in
    conducting a strip search. Section III(A) states a strip search
    must be conducted by a "person of same sex . . . in private . . .
    under sanitary conditions, and . . . in a professional and
    dignified manner, and [when in] custodial confinement, conducted
    in accordance with Department of Corrections regulations."
    
    Guidelines, supra
    , Section III(A). As we discuss, infra, Section
    12
    A-0489-14T1
    III.
    "The touchstone of the Fourth Amendment is reasonableness."
    United States v. Knights, 
    534 U.S. 112
    , 118, 
    122 S. Ct. 587
    , 591;
    
    151 L. Ed. 2d 497
    , 505 (2001); see also State v. Gonzales, 
    227 N.J. 77
    ,   104    (2016)       (stating     "a     standard      of     objective
    reasonableness governs the validity of searches and seizures under
    both our Federal and State Constitutions"); State v. Watts, 
    223 N.J. 503
    , 514-15 (2015); State v. Hathaway, 
    222 N.J. 453
    , 476
    (2015); State v. Bruzzese, 
    94 N.J. 210
    , 219 (1983), cert. denied,
    
    456 U.S. 1030
    , 
    104 S. Ct. 1295
    , 
    79 L. Ed. 2d 695
    (1984).                             We
    conduct a fact-sensitive review of each phase of the encounter
    between    police    and    suspect,    "consider[ing]        the    circumstances
    facing the officers who had to make on-the-spot decisions in a
    fluid situation."      
    Watts, supra
    , 223 N.J. at 514.               We uphold those
    factual    findings    of    the    trial     judge    that   are    "supported     by
    sufficient credible evidence in the record," State v. Elders, 
    192 N.J. 224
    , 243 (2007) (citation omitted), and are not bound to
    accept    findings    that     are     "clearly       mistaken"     based    on    our
    independent review of the record, 
    id. at 244.
                     Issues of law are
    reviewed de novo.      See 
    Watts, supra
    , 223 N.J. at 516.
    II of the Guidelines establishes prerequisites that must be
    satisfied before a strip search is permitted and which were not
    satisfied here.
    13
    A-0489-14T1
    "[A] single encounter may escalate from 'inquiry' to 'stop'
    to 'arrest' so that the criteria for each category must be applied
    as the situation shades off from one category to the other." State
    v. Harris, 
    384 N.J. Super. 29
    , 45 (App. Div.) (quoting State v.
    Alexander, 
    191 N.J. Super. 573
    , 577 (App. Div. 1983), certif.
    denied, 
    96 N.J. 267
    (1984)), certif. denied, 
    188 N.J. 357
    (2006).
    Thus, an encounter that begins with a valid arrest or investigative
    stop may lead to a seizure that will be suppressed because the
    officer has unreasonably expanded the permissible scope of an
    otherwise valid search.       See, e.g., State v. Privott, 
    203 N.J. 16
    ,
    28-32 (2010) (concluding the officer unreasonably expanded the
    permissible scope of the search when he lifted defendant's shirt
    after   conducting    a    proper    investigative     stop    and   protective
    patdown);   
    Harris, supra
    ,    384   N.J.   Super.   at   48-49   (finding
    officers' initial approach of defendant, request that he spit out
    the substance in his mouth, arrest and search incident to arrest
    were reasonable, but concluding officers lacked probable cause to
    believe there were additional drugs hidden in other body parts to
    justify a strip search).
    Because   the    search       required    to   remove   the   object   from
    defendant's clothing required "the removal or rearrangement of
    clothing for the purpose of visual inspection of the person's
    undergarments," it fell within the definition of a strip search,
    14
    A-0489-14T1
    N.J.S.A. 2A:161A-3, and was subject to the requirements of N.J.S.A.
    2A:161A-1.   The statute "is prophylactic, designed to protect
    citizens from an intrusive and degrading invasion of privacy."
    
    Hayes, supra
    , 327 N.J. Super. at 384.   We have observed that this
    statute "was adopted to provide greater protection than is afforded
    by the Fourth Amendment," noting that "a statute providing rights
    coextensive with constitutional protections would be superfluous."
    
    Id. at 381;
    see also 
    Harris, supra
    , 384 N.J. Super. at 49.
    Pursuant to N.J.S.A. 2A:161A-1,
    [a] person who has been detained or arrested
    for commission of an offense other than a
    crime shall not be subjected to a strip search
    unless:
    a. The search is authorized by a warrant or
    consent;
    b. The search is based on probable cause that
    a      weapon,      controlled      dangerous
    substance . . . or evidence of a crime will
    be found and a recognized exception to the
    warrant requirement exists; or
    c. The person is lawfully confined in a
    municipal detention facility or an adult
    county correctional facility and the search
    is based on a reasonable suspicion that a
    weapon, controlled dangerous substance . . .
    or contraband, as defined by the Department
    of Corrections, will be found, and the search
    is   authorized   pursuant   to   regulations
    promulgated by the Commissioner of the
    Department of Corrections.
    [(Emphasis added).]
    15
    A-0489-14T1
    Therefore, the statutory criteria that had to be met for a
    strip search under the circumstances here were: probable cause and
    the    application   of   a   recognized    exception     to    the    warrant
    requirement. N.J.S.A. 2A:161A-1(b). It is undisputed that Officer
    Laboy had probable cause to believe defendant was concealing
    contraband upon touching the bulge in defendant's groin area.                  We
    therefore proceed to analyze whether a recognized exception to the
    warrant    requirement    applied   and    whether   it   was    objectively
    reasonable to conduct a strip search under the circumstances here.
    A.
    The search in this case was one incident to arrest, which may
    not be relied upon as the recognized exception to the warrant
    requirement to satisfy the second criteria of subsection 2A:161A-
    1(b). 
    Hayes, supra
    , 327 N.J. Super. at 378. In Hayes, we reasoned,
    "the strip search statute's protections are triggered by an arrest.
    An arrest alone, therefore, cannot be both the event invoking the
    protections as well as the event nullifying them."             
    Ibid. We also rejected
    the State's contention that the lack of sufficient time
    to obtain a warrant "and the likelihood that the defendant would
    continue to conceal or otherwise dispose of the evidence creates
    an    exigency   justifying   a   warrantless   search    under       [N.J.S.A.
    2A:161A-1(b)]."      
    Ibid. We noted that
    if this contention were
    accepted, "it would effectively nullify the statutory protection
    16
    A-0489-14T1
    afforded     to   persons    detained        or   arrested    for       non-criminal
    offenses."    
    Ibid. The State argues
    that the "plain feel" exception to the
    warrant    requirement      applied   here,       constituting      a    "recognized
    exception to the warrant requirement."                Defendant contends the
    plain feel exception "is not properly understood as an exception
    to the warrant requirement" and therefore cannot be a foundation
    for the "substantial additional intrusion" of a strip search.                      He
    argues further that even if accepted as an exception to the warrant
    requirement, the application of a plain feel exception in strip
    search cases would nullify the protections of the strip search
    statute because "any time an officer felt what he suspected to be
    drugs during a pat down, he would automatically be justified in
    conducting a strip search."
    Contrary to defendant's assertion, one year after the Supreme
    Court   decided    Dickerson,    this    court      adopted   the       plain   touch
    exception to the warrant requirement, holding:
    If a police officer lawfully pats down a
    suspect's outer clothing and feels an object
    whose contour or mass makes its identity
    immediately apparent, there has been no
    invasion of the suspect's privacy beyond that
    already authorized by the officer's search for
    weapons; if the object is contraband, its
    warrantless seizure would be justified by the
    same practical considerations that inhere in
    the plain view context.
    17
    A-0489-14T1
    
    [Jackson, supra
    , 276 N.J. Super. at 630-31
    (quoting 
    Dickerson, supra
    , 508 U.S. at 375-
    
    76, 113 S. Ct. at 2137
    , 
    124 L. Ed. 2d
    at 346
    (1993)).]
    We explained that the plain feel exception is "a corollary
    to the plain view doctrine,"7 and thus the same public policy
    concerns undergirding the plain view exception applied.              See 
    id. at 628,
    630-31; see also State v. Toth, 
    321 N.J. Super. 609
    , 615
    (App. Div. 1999) (stating "[t]here is no reason in law, logic, or
    policy that would justify a different analysis when analyzing
    plain feel matters"), certif. denied, 
    165 N.J. 531
    (2000); State
    v. Cargill, 
    312 N.J. Super. 13
    , 17 (App. Div.) (finding "plain
    touch" exception to warrant requirement applied), certif. denied,
    
    156 N.J. 408
    (1998).
    To be sure, the application of the plain feel exception as a
    gateway   to    strip    searches     conjures     concerns   regarding   the
    nullification    of     the   very   protections   N.J.S.A.   2A:161A-1   was
    7
    In 
    Gonzales, supra
    , 227 N.J. at 90, 95-97, our Supreme Court
    reviewed the plain view exception to the warrant requirement under
    Article I, Paragraph 7 of the New Jersey Constitution, discarded
    the prior requirement that evidence be discovered inadvertently
    to conform to federal jurisprudence, 
    id. at 99-100,
    and identified
    the following criteria for its application: "the officer must
    lawfully be in the area where he observed and seized the
    incriminating item or contraband, and it must be immediately
    apparent that the seized item is evidence of a crime." 
    Id. at 101
    (emphasis added).
    18
    A-0489-14T1
    designed to afford.8   It bears noting that "the reasonableness of
    a search is determined 'by assessing, on the one hand, the degree
    to which it intrudes upon an individual's privacy and, on the
    other, the degree to which it is needed for the promotion of
    legitimate governmental interests.'"   
    Knights, supra
    , 534 U.S. at
    
    118-119, 122 S. Ct. at 591
    ; 151 L. Ed. 2d at 505 (quoting Wyoming
    v. Houghton, 
    526 U.S. 295
    , 300, 
    119 S. Ct. 1297
    , 1300, 
    143 L. Ed. 2d
    408, 414 (1999)).
    We are guided by the Supreme Court's application of the plain
    feel doctrine in 
    Dickerson, supra
    , 508 U.S. at 
    366, 113 S. Ct. at 2130
    , 
    124 L. Ed. 2d
    at 334, a case that did not entail the
    significant intrusion of a strip search but only the admissibility
    of contraband detected during a patdown search conducted pursuant
    to Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968).   No weapons were recovered but, the Court noted, "the
    8
    In 
    Hayes, supra
    , 327 N.J. Super. at 378, our concern regarding
    the nullification of the strip search statute's protections
    extended to our consideration of section 1(c) of the statute. We
    concluded, "an investigative detention to permit the police to
    search for outstanding arrest warrants, regardless of the time it
    takes, does not render a suspect 'lawfully confined' within the
    meaning of section 1c of the statute." 
    Id. at 383;
    see also Anne
    Bowen Poulin, The Plain Feel Doctrine and the Evolution of the
    Fourth Amendment, 42 Vill. L. Rev. 741, 742 (1997) ("Whether the
    'plain feel' exception under Dickerson encourages more invasive
    but unfruitful searches is an elusive and troublesome question.").
    19
    A-0489-14T1
    officer conducting the search did take an interest in a small lump
    in respondent's nylon jacket."    
    Dickerson, supra
    , 508 U.S. at 
    369, 113 S. Ct. at 2133
    , 
    124 L. Ed. 2d
    at 341.     The officer testified
    that after feeling the "small lump," he "examined it with [his]
    fingers and it slid and it felt to be a lump of crack cocaine in
    cellophane."   
    Ibid. The Court reaffirmed
    the principle that officers conducting
    a protective patdown search for weapons may seize contraband
    detected during that search "so long as the officers' search stays
    within the bounds marked by Terry."      
    Id. at 373,
    113 S. Ct. at
    
    2136, 124 L. Ed. 2d at 344
    .      However, the Court also emphasized
    that, for the plain feel exception to apply, the incriminating
    character of the object must be "immediately apparent."     
    Ibid. If a police
    officer lawfully pats down a
    suspect's outer clothing and feels an object
    whose contour or mass makes its identity
    immediately apparent, there has been no
    invasion of the suspect's privacy beyond that
    already authorized by the officer's search for
    weapons; if the object is contraband, its
    warrantless seizure would be justified by the
    same practical considerations that inhere in
    the plain-view context.
    [Id. at 375-
    76, 113 S. Ct. at 2137
    , 
    124 L. Ed. 2d
    at 346 (emphasis added).]
    Applying these principles, the Court concluded the seizure
    of the cocaine from the respondent's pocket could not be justified
    under the plain feel doctrine:
    20
    A-0489-14T1
    [T]he officer's continued exploration of
    respondent's pocket after having concluded
    that it contained no weapon was unrelated to
    "the sole justification of the search [under
    Terry:] . . . the protection of the police
    officer and others nearby."      It therefore
    amounted to the sort of evidentiary search
    that Terry expressly refused to authorize, and
    that we have condemned in subsequent cases.
    [Id. at 
    378, 113 S. Ct. at 2138-39
    , 
    124 L. Ed. 2d
    at 347-48 (alterations in original)
    (citations omitted).]
    Similarly, we find the record here does not support          an
    application of the plain feel doctrine.9
    A threshold requirement for the application of the plain feel
    exception is that the character of the contraband be "immediately
    apparent."    See 
    id. at 375,
    113 S. Ct. at 2137, 
    124 L. Ed. 2d
    at
    345.   Although the trial judge made this finding, that conclusion
    is not supported by the record.       Laboy never testified it was
    "immediately apparent" to him that the bulge concealed drugs.
    Laboy stated he felt the bulge in defendant's groin area and
    manipulated it. He said the bulge "felt like a rocklike substance"
    and that when he felt the rocklike substance, he "believe[d]" it
    was "[c]rack cocaine."    When he viewed the substances retrieved,
    he "suspect[ed]" them to be "[c]rack cocaine and heroin."
    9
    Therefore, we need not address the issue raised by defendant -
    that the plain feel exception should not be available to justify
    a strip search under N.J.S.A. 2A:161A-1.
    21
    A-0489-14T1
    We recognize that the line between "immediately apparent" and
    "probable    cause"    is    easily    blurred.        Given   the    significant
    intrusion of a strip search, the authority provided by N.J.S.A.
    2A:161A-1 should not turn on whether the officer utters the correct
    talismanic words.      Rather than making a conclusory statement, the
    officer     should    articulate      specific      facts   that     support   his
    assertion    that    the    nature    of    the   contraband   was    immediately
    apparent.
    By way of example, both our court and the Supreme Court found
    the plain feel doctrine applicable when the officer conducting a
    lawful search "feels an object whose contour or mass makes its
    identity immediately apparent."                 
    Dickerson, supra
    , 508 U.S. at
    
    375, 113 S. Ct. at 2137
    , 
    124 L. Ed. 2d
    at 345; Jackson, 
    supra, 276 N.J. Super. at 630-31
    .         The size and shape of the contraband can
    be independently assessed by the court's inspection of the physical
    evidence and give credence to or cast doubt upon the officer's
    assertion that its identity was "immediately apparent" with a mere
    touch.    See 
    Poulin, supra, at 787-88
    .               The officer's knowledge
    that the arrestee has concealed drugs on his person in the past
    may also contribute to the officer's immediate realization that
    the bulge he touched was drugs. See 
    Harris, supra
    , 384 N.J. Super.
    at 48-49; 
    Hayes, supra
    , 327 N.J. Super. at 378.
    22
    A-0489-14T1
    The record here fails to provide details to support a finding
    that the character of the bulge was immediately apparent. Although
    the location of the bulge here was a fact that gave cause for
    suspicion, see 
    Harris, supra
    , 384 N.J. Super. at 47-48, there was
    no known history that defendant had concealed drugs on his person.
    Defendant was not under investigation for any drug activity and
    the only testimony regarding drugs was that defendant had possessed
    marijuana in the past.   The record also fails to establish that
    the size of the bulge was remarkable in any way.     Indeed, Laboy
    testified that the heroin "was not that big."
    More important, the manipulation of the bulge cannot be
    divorced from the tactile information that formed the basis for
    Laboy's belief that the bulge was drugs.   In 
    Dickerson, supra
    , 508
    U.S. at 
    378, 113 S. Ct. at 2138-39
    , 
    124 L. Ed. 2d
    at 347-48, the
    Supreme Court rejected the application of the plain feel exception
    because the officer exceeded the permissible scope of a Terry stop
    when he manipulated the bulge after concluding it was not a weapon.
    Here, too, the perception that the bulge concealed drugs was made
    after the bulge was manipulated, not upon a mere touch in which
    the nature of the concealed object was immediately apparent.     The
    threshold requirement of the plain feel exception to the warrant
    exception was not met.
    23
    A-0489-14T1
    We therefore conclude that the plain feel doctrine does not
    apply here to satisfy the statutory criteria for a strip search,
    N.J.S.A. 2A:161A-1(b), and that to do so under the circumstances
    here would place the protections afforded by that statute in
    jeopardy.    See 
    Dickerson, supra
    , 508 U.S. at 
    378, 113 S. Ct. at 2138
    , 
    124 L. Ed. 2d
    at 347 (quoting Texas v. Brown, 
    460 U.S. 730
    ,
    748, 
    103 S. Ct. 1535
    , 1547; 
    75 L. Ed. 2d 502
    , 518 (1983) (Stevens,
    J., concurring) (noting the danger that an officer executing a
    valid search "will enlarge a specific authorization, furnished by
    a warrant or an exigency, into the equivalent of a general warrant
    to rummage and seize at will"); 
    Hayes, supra
    , 327 N.J. Super. at
    378.
    B.
    Based upon our review of the record, we also conclude the
    drugs seized from defendant's person must be suppressed because
    the police conduct was not objectively reasonable.
    A factor to be considered in assessing the reasonableness of
    the search is the basis for the arrest "in light of 'the facts
    known to the law enforcement officer at the time of the search.'"
    State v. Handy, 
    206 N.J. 39
    , 47 (2011) (quoting 
    Bruzzese, supra
    ,
    94 N.J. at 221).   Laboy testified that, at the time of defendant's
    arrest, defendant was not under investigation for any crime and
    24
    A-0489-14T1
    he was not stopped with the expectation that he had drugs in his
    possession.
    Although the basis for the warrant was unknown, the fact it
    was for a failure to pay a $6.50 fine was knowable. Laboy testified
    he remained at the scene with defendant for ten to fifteen minutes
    before transporting him to the police station. While at the scene,
    he confirmed that the warrant remained active, called for a K-9
    unit and for his station commander, who arrived at the scene and
    gave his authorization for a strip search before Laboy left with
    defendant.    No reason was offered as to why the basis for the
    active warrant was not determined then or at any time before the
    strip search.
    When officers have probable cause to believe that evidence
    exists and will only be recovered through a strip search, the
    mechanics for effecting the strip search will entail transporting
    the suspect to a secure location where the search may be conducted
    in compliance with Section III of the Attorney General Guidelines.
    This   procedure   will   necessarily    require     additional   time   to
    complete   and   the   suspect   will   be   under   police   observation
    throughout. As a result, it would appear that, barring exceptional
    circumstances, the arrestee will have scant opportunity to destroy
    or discard evidence undetected by police.
    25
    A-0489-14T1
    We also find it significant to our assessment that the
    officers failed to comply with the Attorney General's Guidelines
    for strip searches.       As the chief law enforcement officer of this
    State, the Attorney General is authorized to provide for "uniform
    and   efficient       enforcement     of     the   criminal        law    and    the
    administration of criminal justice throughout the State," N.J.S.A.
    52:17B-98,     and     explicitly     authorized       to    issue       guidelines
    applicable to the strip search conducted here.                N.J.S.A. 2A:161A-
    8b.   The Attorney General Guidelines govern the performance of
    strip and body cavity searches for both the non-indictable offenses
    covered by N.J.S.A. 2A:161A-1 and for crimes.                The Guidelines are
    "binding    and    enforceable   on   local      law   enforcement       agencies."
    O'Shea v. Twp. of W. Milford, 
    410 N.J. Super. 371
    , 383 (App. Div.
    2009) (citing In re Carroll, 
    339 N.J. Super. 429
    , 442-43 (App.
    Div.), certif. denied, 
    170 N.J. 85
    (2001)).
    The    Attorney     General     Guidelines       do    not     dictate     the
    disposition of the issue at hand but they merit our consideration
    in determining whether the police conduct here was objectively
    reasonable.       See State v. Dangerfield, 
    171 N.J. 446
    , 457-58 (2002)
    (criticizing       officers'   failure      to   follow     established      police
    procedure for determining whether defendant was lawfully on the
    premises and concluding police lacked probable cause to arrest for
    defiant trespass).
    26
    A-0489-14T1
    The Guidelines establish more exacting requirements for a
    strip search than those established by N.J.S.A. 2A:161-1A.             When,
    as here, the person is detained or arrested without custodial
    confinement,10    and   there   are   no    exigent    circumstances,11   the
    requirements for a strip search are:
    (1)   Search warrant or consent, and
    (2)   Authorized by officer in charge of the
    station house.
    [
    Guidelines, supra
    , Section II(A)(1)(a).]
    Therefore, while N.J.S.A. 2A:161A-1(b) would permit a strip
    search upon a finding of probable cause and a recognized exception
    to   the   warrant   requirement,     the   Attorney    General   Guidelines
    10
    Custodial confinement pertains to N.J.S.A. 2A:161-1A(c). The
    State does not contend that this subsection applies here and it
    is evident that subsection (c) does not apply. See 
    Hayes, supra
    ,
    327 N.J. Super. at 383.
    11
    When there are exigent circumstances, the Guidelines permit
    the strip search of an arrestee if the following exist:
    (1)   Probable cause to believe that the person
    is concealing a weapon, contraband or
    evidence of crime, and
    (2)   Exigent circumstances prevent obtaining
    a search warrant or approval of officer
    in charge.
    [
    Guidelines, supra
    , Section II(A)(1)(b).]
    The State does not contend that the failure to obtain a warrant
    for the strip search was excused by exigent circumstances.
    27
    A-0489-14T1
    completely eliminate subsection (b) as a basis for permitting a
    strip search in the absence of exigent circumstances.               Stated
    simply, the officers here had to obtain a warrant for the strip
    search in order to comply with the Attorney General's Guidelines.
    We also note that the justification for plain feel as an
    exception to the warrant requirement is based in part on "the
    realization   that   resort   to   a    neutral   magistrate   under   such
    circumstances would often be impracticable and would do little to
    promote the objectives of the Fourth Amendment." 
    Dickerson, supra
    ,
    508 U.S. at 
    375, 113 S. Ct. at 2137
    , 
    124 L. Ed. 2d
    at 345-46.            We
    find that justification absent here.              There were no exigent
    circumstances.   There was sufficient time to obtain a K-9 reaction
    to the vehicle defendant was driving.        The defendant was detained
    at the arrest scene for ten to fifteen minutes and then had to be
    transported to the police station before any strip search could
    be conducted. Although the record is unclear as to when the search
    warrant for the vehicle was obtained, the officers did obtain a
    search warrant for the automobile.          Therefore, the facts do not
    suggest it was impracticable to resort to a neutral magistrate.
    And, comparing the levels of intrusion occasioned by an automobile
    search and a strip search, reason fails to reconcile how the
    objectives of the Fourth Amendment are served by permitting a
    28
    A-0489-14T1
    warrantless strip search when a warrant to search an automobile
    was obtainable and obtained.
    In sum, the record fails to establish that the plain feel
    exception to the warrant requirement justifies the warrantless
    strip search here.   Further, our assessment of the totality of the
    circumstances leads us to conclude the search was not objectively
    reasonable.   Therefore, the drugs seized from defendant's person
    must be suppressed and the convictions based upon that seizure,
    counts two, three, four, five and seven, are reversed.
    IV.
    As a result, defendant's remaining convictions arise from the
    seizure of a handgun and hollow nose bullets from the automobile,
    counts one, six and eight.     Our review of the record leads us to
    conclude these convictions may not be left undisturbed.
    A.
    The handgun and bullets were seized from the automobile
    following a search authorized by a search warrant.        Defendant
    argues this evidence must be suppressed as fruit of the poisonous
    tree.   See Wong Sun v. United States, 
    371 U.S. 471
    , 487-88, 83 S.
    Ct. 407, 417 
    9 L. Ed. 2d 441
    , 455 (1963).       The State counters
    defendant's argument by submitting the seizure from the automobile
    was made pursuant to a valid search warrant and should not be
    suppressed.
    29
    A-0489-14T1
    "The     exclusionary       rule   generally      bars       the    State     from
    introducing into evidence the 'fruits' of an unconstitutional
    search or seizure."         State v. Shaw, 
    213 N.J. 398
    , 412-13 (2012)
    (citing Wong 
    Sun, supra
    , 371 U.S. at 
    485, 83 S. Ct. at 416
    , 9 L.
    Ed. 2d at 454).       In determining whether the evidence seized from
    the automobile must be suppressed, the issue is whether that
    seizure "was a product of the 'exploitation of [the primary]
    illegality'"     —    the   unlawful       strip     search    —    "or    of     'means
    sufficiently      distinguishable        to     be    purged       of    the    primary
    taint' . . . ."       
    Id. at 413
    (alteration in original) (quoting Wong
    
    Sun, supra
    , 371 U.S. at 
    488, 83 S. Ct. at 417
    , 9 L. Ed. 2d at
    455).
    We recognize that a search warrant is presumed to be valid
    and that our "role is not to determine anew whether there was
    probable cause for issuance of the warrant, but rather, whether
    there is evidence to support the finding made by the warrant-
    issuing judge."       State v. Chippero, 
    201 N.J. 14
    , 20-21 (2009).
    The record here does not permit us to perform that function.
    The affidavit in support of the search warrant is not included in
    the   record    and   it    is   unclear      when   the   warrant        was   sought,
    specifically – whether it was before or after the strip search.
    The   minimal    evidence        regarding     the   K-9   sniff         procedure      is
    unilluminating:
    30
    A-0489-14T1
    Q [DEFENSE COUNSEL]: Now, Officer, at some
    point K-9 was called to the scene; is that
    correct?
    A [LABOY]: That's correct.
    Q: Were you present at the scene when K-9 was
    called? Who – . . .
    A: Yeah, I called them.      I was at the scene
    when I called them.
    Q: Okay.   And was – did K-9 arrive at the
    scene when you were there? . . .
    A: From what I can – from what I can remember,
    no. [H]e was already taken to the station.
    Sergeant Landi arrived on scene. I explained
    to Sergeant Landi the situation.      He gave
    consent to strip search [defendant]. I took
    [defendant] back to the station.      Sergeant
    Landi briefed the K-9 officers on what we were
    doing.
    Q. So in short, [defendant] was not at the
    scene when the K-9 came in?
    A. That's correct. . . .
    Q. And because of that, you procured a search
    warrant; correct?
    A. That is correct.
    Q. And no drugs were found from the -- from
    the car, though; right?
    A. Not that I recall; no.
    Q. Okay. But it was a positive hit for drugs
    that the K-9 g[ot]; right?
    A. That is correct.
    31
    A-0489-14T1
    On this record, we cannot discern to what degree the affidavit
    relied upon the illegal strip search.
    We therefore remand this issue to the trial court to determine
    whether the seizure from the automobile "was a product of the
    'exploitation of [the primary] illegality'" — the unlawful strip
    search — "or of 'means sufficiently distinguishable to be purged
    of the primary taint.'"       
    Shaw, supra
    , 213 N.J. at 413 (quoting
    Wong 
    Sun, supra
    , 371 U.S. at 
    488, 83 S. Ct. at 417
    , 9 L. Ed. 2d
    at 455).
    B.
    The trial was suffused with evidence that related only to the
    possession of drugs we have now suppressed. That evidence included
    the prejudicial use of a hypothetical to the State's expert in
    "general narcotics trafficking, packaging, values, distribution
    and law enforcement interdiction of narcotics," opinion testimony
    that is now prohibited pursuant to State v. Cain, 
    224 N.J. 410
    ,
    429 (2016).     The net effect is that a trial that may have been
    properly conducted to determine defendant's guilt on the weapons
    offenses, depending on the validity of the search warrant, was
    weighted down to a substantial degree by evidence that had the
    capacity   to   prejudice   defendant.   Based   upon   the   facts   and
    circumstances of this case, we conclude that defendant is entitled
    32
    A-0489-14T1
    to a new trial on counts one, six and eight and therefore reverse
    his convictions on those counts.
    V.
    Finally, we address the argument raised in defendant's pro
    se supplemental brief that he was denied a fair trial because his
    feet were shackled and chained to the floor by his ankles on the
    second day of trial.   The court, defense counsel and defendant
    engaged in the following colloquy:
    [DEFENSE COUNSEL]: -- see that he is chained.
    His foot is chained. I'm -- I want to make
    sure to put that on the record. We didn't do
    that last time.
    [DEFENDANT]: You have murderers in here that
    don't even be fucking chained.
    [SHERIFF'S OFFICER]: Judge, we have that on
    once the jury is picked. We always do that.
    Every single trial, we've done that, sir.
    [THE COURT]: The -- you're talking about
    security.    I do not interfere on what's
    actually necessary with the Sheriff's rules
    about security. That's not something that I
    can do with ease.
    So the issue is that in -- so that the
    record is reasonably clear, the practice is
    with an incarcerated Defendant, the Sheriff
    has a shackle on the ankle to, I guess, hook
    in the floor that is not visible to the jury.
    . . .
    [DEFENSE COUNSEL]: Judge, I guess that's one
    of my objections that, you know, he's
    obviously tethered. The jury, they're going
    to be able to see that he has a chain.
    33
    A-0489-14T1
    [THE COURT]: I've tried any number of cases.
    They're not able to see it. What we do is,
    so that we don't have a problem, is when the
    -- as the jury's walking in, I tell them
    everybody remain seated, and you lawyers don't
    get up like you usually do for the jury. . . .
    And then when the jury leaves, I always say,
    everyone remain seated while the jury leaves
    the room. Don't you lawyers get up because
    that way, [defendant] doesn't have to get up
    or look as if he's being disrespectful.
    A trial court "may not require a defendant to appear before
    the jury in restraints absent compelling reasons."                   State v.
    Artwell, 
    177 N.J. 526
    , 534 (2003).           Despite this "sharply limited"
    discretion, State v. Damon, 
    286 N.J. Super. 492
    , 499 (App. Div.
    1996) (quoting State v. Roberts, 
    86 N.J. Super. 159
    , 164 (App.
    Div.    1965)),    a    court   may   exercise    its   discretion   to   order
    restraints "when a defendant exhibits violent conduct at the time
    of trial or threatens escape" or under "other circumstances," such
    as when "defendant's character, reputation, or criminal record may
    indicate a need for physical restraints."                State v. Mance, 
    300 N.J. Super. 37
    , 50-51 (App. Div. 1997).
    The record fails to show any independent finding by the trial
    judge    that     defendant's    conduct     in   the   courtroom    or   other
    circumstances suggested a need for physical restraints.               The fact
    that    it   is   the    sheriff's    practice    to    shackle   incarcerated
    defendants during trial is wholly insufficient as a substitute for
    such a finding.         In light of our decision, reversing defendant's
    34
    A-0489-14T1
    convictions,   we   need   not   determine   whether   defendant   was
    prejudiced by this error.
    Reversed and remanded for additional proceedings as set forth
    in this opinion.    We do not retain jurisdiction.
    35
    A-0489-14T1