               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3619-17T1

STATE OF NEW JERSEY,

     Plaintiff-Respondent,            APPROVED FOR PUBLICATION
v.
                                             October 17, 2018

RICKY BROWN,                              APPELLATE DIVISION


     Defendant-Appellant.
_________________________

          Argued September 12, 2018 – Decided October 17, 2018

          Before Judges Messano, Gooden Brown and Rose.

          On appeal from Superior Court of New Jersey, Law
          Division, Atlantic County, Indictment No. 17-06-1207.

          Christina M. Naughton argued the cause for appellant.

          Dylan P. Thompson, Assistant Prosecutor, argued the
          cause for respondent (Damon G. Tyner, Atlantic
          County Prosecutor, attorney; Dylan P. Thompson, of
          counsel and on the briefs).

          Steven A. Yomtov, Deputy Attorney General, argued
          the cause for amicus curiae Office of the Attorney
          General (Gurbir S. Grewal, Attorney General, attorney;
          Steven A. Yomtov, of counsel and on the brief).

          Margaret R. McLane, Assistant Deputy Public
          Defender, argued the cause for amicus curiae Office of
          the Public Defender (Joseph E. Krakora, Public
            Defender, attorney; Margaret R. McLane, of counsel
            and on the briefs).

            Alexander R. Shalom argued the cause for amicus
            curiae American Civil Liberties Union Foundation
            (Alexander Shalom, of counsel and on the briefs;
            Edward L. Barocas and Jeanne M. LoCicero, on the
            brief).

      The opinion of the court was delivered by

ROSE, J.A.D.

      Among other issues, this appeal requires us to decide whether the strip

search statute (the Statute), N.J.S.A. 2A:161A-1 to -10, applies to crimes. We

granted defendant Ricky Brown's motion for leave to appeal from a January 31,

2018 trial court order, denying his motion to suppress evidence seized as a result

of a strip search following his arrest for indictable drug offenses.        After

reviewing the record in light of the contentions advanced on appeal, we affirm.

                                        I.

      We derive the salient facts from the evidence adduced at the motion

hearing.   On April 5, 2017, Atlantic City Vice Detective Darrin Lorady

conducted surveillance of defendant's residence based on "detailed information"

Lorady had "fairly recently" received from a confidential informant (CI).

According to the CI, defendant would drive from his house in Little Egg Harbor

to the Fox Manor Hotel in Atlantic City, which Lorady described as "a very busy

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place for vice detectives." The CI claimed defendant would distribute narcotics

to a particular individual at the hotel. The CI provided Lorady with defendant's

address in Little Egg Harbor and a description of defendant's vehicle, including

the license plate number. The CI also stated defendant "always has a gun." 1

      At approximately 10:30 a.m., defendant left his house and drove to a

Walmart in town. Aided in his surveillance by Detective Brian Hambrecht,

Lorady followed defendant and observed him engage in a "hand-to-hand

transaction" in the Walmart parking lot with the driver of another vehicle. The

detectives then followed defendant into Atlantic City, heading toward the Fox

Manor Hotel. As defendant approached the hotel, he began circling the block,

which Lorady explained was a common maneuver "to lose a tail or . . . to see if

people are following you." Defendant, who Lorady believed had noticed the

surveillance, then drove out of the city.

      Based on their observations of the hand-to-hand transaction, the accuracy

of the CI's information, and a tinted window infraction, detectives stopped

defendant's vehicle on Route 40, described by Lorady as "a major highway."



1
  Lorady testified on direct examination that the CI told him defendant
"occasionally [would] be in possession of a weapon[,]" but on cross -
examination, defense counsel elicited testimony from Lorady that the CI said
defendant "always has a gun" as documented in Lorady's report.
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                                        3
Lorady asked defendant, who "was visibly shaking" and "seemed very upset[,]"

to exit his vehicle. By that time, other officers had arrived, including a K-9

partner, who positively alerted for the presence of narcotics in defendant's

vehicle.

      During the K-9 sniff, defendant "became more nervous as time

progressed" and continued reaching for a "distinct bulge" in his groin,

"adjust[ing] it slightly."   Believing defendant "possibly was adjusting a

weapon," Lorady attempted to perform "a protective pat down for [his] safety."

Defendant "pulled away" stating, "you can't touch me there." Lorady "couldn't

successfully complete the pat down[,] but [he] was able to feel that there was

something . . . hard" in defendant's groin, in an area that commonly is utilized

to conceal weapons.

      The officers then handcuffed defendant and transported him to the police

station where Lorady obtained permission from his supervisor to conduct a

warrantless strip search of defendant. The strip search was conducted at noon,

in a private interview room, and resulted in the seizure of five bricks of heroin

from defendant's groin "right where [Lorady] had felt [it]."

      Following his arrest, defendant was charged in an Atlantic County

indictment with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1)


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(count one), and second-degree possession of heroin with the intent to distribute,

N.J.S.A. 2C:35-5(b)(2) (count two). Defendant moved to suppress the evidence

seized from his person as a violation of the Statute. The trial judge denied the

motion, finding the Statute did not apply because defendant was under arrest for

a crime at the time of the search. Further, the judge determined the warrantless

search was valid because the officers had probable cause to arrest defendant,

and exigent circumstances existed because the officers believed defendant had

a weapon concealed in his groin area.

      On appeal, defendant contends the trial court erred in denying his motion

because the Attorney General Guidelines (Guidelines), 2 issued pursuant to

N.J.S.A. 2A:161A-8, extend the protections of the Statute to individuals

detained or arrested for crimes, and the police violated the Guidelines. The State

counters the search was justified by probable cause and reasonable exigent

circumstances.

      During the course of the briefing on appeal, we invited and received

amicus curiae briefs from the New Jersey Office of the Attorney General, and




2
  New Jersey Office of the Attorney General, Attorney General's Strip Search
and Body Cavity Search Requirements and Procedures for Police Officers (July
1995), http://www.state.nj.us/lps/dcj/agguide/3strpsch.pdf.
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                                        5
the Office of the Public Defender. We also granted a motion of the American

Civil Liberties Union of New Jersey (ACLU) to appear as amicus curiae.

      Although not contending the Statute applies to crimes, the Public

Defender and ACLU claim the Guidelines delineate the objectively reasonable

circumstances that justify a strip search. They contend here that defendant's

constitutional rights were violated because there was no exigency justifying the

warrantless strip search. The Attorney General claims the Guidelines were

neither intended to nor did they extend the Statute to defendants detained upon

reasonable suspicion or arrested on probable cause of committing a crime, but

even if the Guidelines apply, the search passed constitutional muster.

                                       II.

      Our review of a trial judge's decision on a motion to suppress is limited.

State v. Robinson, 200 N.J. 1, 15 (2009). "An appellate court reviewing a

motion to suppress evidence in a criminal case must uphold the factual findings

underlying the trial court's decision, provided that those findings are 'supported

by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417,

425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). We do so

"because those findings 'are substantially influenced by [an] opportunity to hear

and see the witnesses and to have the "feel" of the case, which a reviewing court


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cannot enjoy.'" State v. Gamble, 218 N.J. 412, 424-25 (2014) (alteration in

original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We owe no

deference, however, to conclusions of law made by trial courts in deciding

suppression motions, which we instead review de novo. State v. Watts, 223 N.J.

503, 516 (2015).

                                        A.

      Evidence seized as a result of a strip search conducted in violation of

N.J.S.A. 2A:161A-1 is subject to suppression. State v. Harris, 384 N.J. Super.

29, 49-51 (App. Div. 2006); State v. Hayes, 327 N.J. Super. 373, 385 (App. Div.

2000). Indeed, the Statute provides "greater protection than is afforded by the

Fourth Amendment."       Id. at 381.   Originally adopted in 1985 to establish

statutory guidelines for acceptable parameters of a strip search, the Statute

presumably was enacted in response to State v. Sheppard, 196 N.J. Super. 448,

455 (Law. Div. 1984), a trial court decision invalidating a police department's

policy of strip searching all detainees. See L. 1985, c. 70; Hayes, 327 N.J. Super.

at 381.

      We, therefore, begin our analysis with a de novo review of the trial court's

initial determination that the protections of the Statute do not apply here.      In

doing so, we consider the plain language of the Statute. See State v. Brannon,


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                                        7
178 N.J. 500, 505-06 (2004); State v. Thomas, 166 N.J. 560, 567 (2000); State

v. Butler, 89 N.J. 220, 226 (2006) (recognizing the well-settled rule of statutory

construction that courts "look first to the language of the statute"). Thus, "If the

statute is clear and unambiguous on its face and admits of only one

interpretation, [courts] need delve no deeper than the act's literal terms to divine

the Legislature's intent." Butler, 89 N.J. at 226.

      Pursuant to the Statute:

            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.

            [N.J.S.A. 2A:161A-1 (emphasis added).]



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                                         8
      Clearly, as the motion judge recognized, the plain language of N.J.S.A.

2A:161A-1 limits its application to non-indictable offenses. Indeed, none of the

parties or amici contend otherwise.

      At issue, however, is whether the Guidelines extend the protections of the

Statute where, as here, a suspect is arrested based on probable cause of having

committed an indictable offense.3         In deciding this issue, we review the

Guidelines in conjunction with the legislative history of the Statute to give

context to its breadth and application.

      On February 3, 1993, the Director of the Division of Criminal Justice

issued a memorandum to all county prosecutors pertaining to the Guidelines

with the following prefatory statement (emphasis added):

            Enclosed for dissemination to all county and local law
            enforcement agencies within your jurisdiction are the
            Attorney General's Strip Search and Body Cavity
            Search Requirements and Procedures for Police
            Officers. These guidelines are being promulgated
            pursuant to N.J.S.A. 2A:161A-8b, which authorizes the
            Attorney General to issue guidelines governing the
            performance of strip and body cavity searches, as well
            as guidelines for the release and confinement of persons
            arrested for offenses other than crimes. While the
            [S]tatute addresses non-indictable offenses, the
            Attorney General's guidelines cover strip search and
            body cavity search procedures for crimes as well.

3
  Although the motion judge recognized defendant's argument that the
Guidelines applied here, she did not expressly rule on their applicability.
                                                                        A-3619-17T1
                                          9
      Because the Guidelines apply to crimes and non-indictable offenses, they

deviate from the explicit provisions of the statutory mandate pursuant to

N.J.S.A. 2A:161A-8(b).       The Guidelines also "establish more exacting

requirements for a strip search than those established by N.J.S.A. 2A:161A -1."

State v. Evans, 449 N.J. Super. 66, 88 (App. Div. 2017), rev'd on other grounds,

___ N.J. ___ (2018). For example, where a suspect is arrested without custodial

confinement, "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, [whereas] the Attorney General Guidelines [Section II(A)(1)(a)]

completely eliminate subsection (b) as a basis for permitting a strip search in the

absence of exigent circumstances." Id. at 89.

      Preliminarily, we have recognized, "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 [a strip search conducted on a person arrested for

commission of an offense other than a crime,] N.J.S.A. 2A:161A-8(b)." Id. at

87-88. "The Guidelines are 'binding and enforceable on local law enforcement




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                                       10
agencies.'" Id. at 88 (quoting O'Shea v. Twp. of W. Milford, 410 N.J. Super.

371, 383 (App. Div. 2009)).

      In O'Shea, we reiterated that "consistent with [N.J.S.A. 52:17B-98], the

[Attorney General] issues guidelines, directives and policies concerning

appropriate application of the State's criminal laws." 410 N.J. Super. at 383.

Further, "Our Supreme Court has acknowledged the validity of various

guidelines issued by the Attorney General." In re Carroll, 339 N.J. Super. 429,

439 (App. Div. 2001). These guidelines pertain to plea offers, sex offender

registration, drug screening and drug testing. Id. at 439-40. But see State v.

Henderson, 208 N.J. 208, 278 (2011) (recognizing that the Attorney General's

guidelines for preparing and conducting identification procedures were a series

of "recommended best practices").

      When the Statute initially was enacted, there was no provision

empowering the Attorney General to promulgate regulations or to issue

guidelines governing the performance of strip searches.         Rather, N.J.S.A.

2A:161A-8 (prior to amendment) provided, in pertinent part:

            Nothing in this act shall prohibit a strip search or body
            cavity search of a person unable to post bail after a
            reasonable opportunity to do so, who is lodged by court
            order or pursuant to an arrest authorized by law, in a
            lockup, detention facility, prison, jail or penal
            institution. The Administrative Office of the Courts

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                                      11
            shall promulgate a bail schedule for all offenses, other
            than crimes, and bail may be fixed and accepted by the
            law enforcement officer in charge of the station house.

The Legislature explained that "[t]he provisions of this bill are not to apply to

any search of a person who is lodged by court order or to a person arrested and

authorized by law to be in a lockup, detention facility, prison, jail or penal

institution." A. Comm. Statement to A. 701 (March 5, 1984).

      Thereafter, in Ernst v. Borough of Fort Lee, 739 F. Supp. 220, 225 (D.N.J.

1990), the District Court held that the provisions of the Fort Lee Police

Department Operations Manual, and N.J.S.A. 2A:161A-8 (prior to amendment)

upon which it was based, did "not pass muster under the Constitution to the

extent that they permit the indiscriminate strip search of an arrestee on a minor

offense without requiring a reasonable suspicion that the arrestee is concealing

a weapon or harboring contraband or drugs." Courts also found that mandatory

policies requiring a strip search of every arrestee, regardless of the offense

charged, were unconstitutional. See O'Brien v. Borough of Woodbury Heights,

679 F. Supp. 429, 433-34 (D.N.J. 1988); Davis v. City of Camden, 657 F. Supp.

396, 400 (D.N.J. 1987). See also State v. Sheppard, 196 N.J. Super. at 455 (strip

searches cannot be routinely performed on defendants charged with non-

criminal offenses who have not yet posted bail).


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                                      12
      As a result, in 1991, the Legislature amended the Statute to its present

form. N.J.S.A. 2A:161A-8, as amended, now provides, in pertinent part:

            a.      The Commissioner of the Department of
            Corrections, after consultation with the Attorney
            General, pursuant to authority granted in sections 6 and
            10 of P.L.1976, c. 98 (C. 30:1B-6 and 30:1B-10) and
            this section shall promulgate regulations governing
            strip and body cavity searches of persons detained in
            municipal detention or adult county correctional
            facilities. These regulations shall give full recognition
            to the rights of persons confined granted under the
            constitutions of the United States and this State.

            b. The Attorney General shall issue guidelines or
            directives for police officers governing the release and
            confinement of persons who have been arrested for
            commission of an offense other than a crime and such
            guidelines governing the performance of strip and body
            cavity searches as he deems necessary to promote
            compliance with this act, the regulations promulgated
            by the Commissioner of the Department of Corrections,
            and with the constitutions of the United States and this
            State.    The Attorney General may require law
            enforcement agencies to submit periodic reports
            providing data on all strip searches and body cavity
            searches conducted.

The Legislature explained that the Statute

            authorizes the Department of Corrections, in
            consultation with the Attorney General, to promulgate
            regulations governing strip and body cavity searches.
            The Attorney General is also authorized to issue
            directives to police officers governing the performance
            of strip and body cavity searches.


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                                      13
            [S. Judiciary Comm. Statement to A. 1182 (May 13,
            1991) (emphasis added).]

      Pertinent to this appeal, the Legislature empowered the Attorney General

to issue regulations and directives concerning how a strip search is performed,

i.e., basic procedures for privacy and sanitary conditions. 4 Absent from the

Statute or legislative history, however, is any provision authorizing the Attorney

General to extend the same search requirements to individuals who are detained

or arrested for crimes.    In that respect, the Guidelines are not statutorily

authorized or otherwise a rational implementation of the Attorney General's

delegated power pursuant to N.J.S.A. 2A:161A-8(b).5 We, therefore, reject the


4
   The Guidelines specifically provide that strip searches "[i]n custodial
confinement [are to be] conducted in accordance with Department of
Corrections regulations." In turn, the regulations adopted by the Department of
Corrections pursuant to N.J.S.A. 2A:161A-8(a), governing strip searches of
individuals detained in municipal detention or adult correctional facilities, are
different for individuals detained for the commission of an offense other than a
crime, N.J.A.C. 10A:34-3.4 and N.J.A.C. 10A:31-8.4, than for persons lawfully
confined for the commission of a crime, N.J.A.C. 10A:34-3.5 and N.J.A.C.
10A:31-8.5.
5
  The Attorney General's amicus brief candidly concedes that because the
Guidelines, which were last revised in 1995, "are well over two decades old and
do not incorporate case law decided during that time span, [they] will need to be
revised and updated accordingly." In addition, we urge that any revised
Guidelines comply with the statutory authority set forth in N.J.S.A. 2A:161A-1
to -10.



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                                       14
arguments of defendant, and those presented in a more nuanced version by the

Public Defender and ACLU. Neither the legislative history nor the plain terms

of the Statute authorized the Attorney General to promulgate Guidelines that

extend the "more exacting requirements for a strip search than [even] those

established by N.J.S.A. 2A:161A-1" to those detained or arrested for crimes.

Evans, 449 N.J. Super. at 88.

                                        B.

      We next turn to defendant's constitutional challenge, focusing on whether

exigent circumstances existed to justify the warrantless strip search. 6          In

particular, defendant challenges the trial court's determination that his actions

in resisting the pat-down search at the side of the highway created exigent

circumstances justifying the warrantless strip search at the police station.

      The Fourth Amendment of the United States Constitution, and Article I,

Paragraph 7 of the New Jersey Constitution, "protect citizens against

unreasonable police searches and seizures by requiring warrants issued upon

probable cause." State v. Rodriguez, 172 N.J. 117, 125 (2002). Warrantless

searches and seizures are "presumptively invalid." State v. Pineiro, 181 N.J. 13,



6
  Defendant does not challenge the motion judge's determination that the police
had "[p]robable cause to believe the evidence of a crime would be found."
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19 (2004). When the State does not seek a warrant, the State bears the burden

to demonstrate the search "falls within one of the few well-delineated exceptions

to the warrant requirement." Rodriguez, 172 N.J. at 125 (quoting State v.

Maryland, 167 N.J. 471, 482 (2001)).

      Our Supreme Court has recognized the exigent circumstances doctrine as

one exception to the warrant requirement. State v. Cassidy, 179 N.J. 150, 160

(2004) abrogated on other grounds by State v. Edmonds, 211 N.J. 117 (2012).

Proof of both exigent circumstances and probable cause "may excuse police

from compliance with the warrant requirement." State v. Walker, 213 N.J. 281,

289 (2013) (quoting State v. Bolte, 115 N.J. 579, 585-86 (1989)).

      The focus of the exigent circumstances inquiry is whether the police

conduct was objectively reasonable under the totality of the circumstances.

State v. DeLuca, 168 N.J. 626, 634 (2001). "Generally stated, circumstances are

exigent when they 'preclude expenditure of the time necessary to obtain a

warrant because of a probability that the suspect or the object of the search will

disappear, or both.'" Id. at 632. "[T]he term 'exigent circumstances' . . . is

incapable of precise definition because, by its nature, the term takes on form and

shape depending on the facts of any given case." Ibid. Accordingly, "the




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                                       16
application of the doctrine of exigent circumstances demands a fact-sensitive,

objective analysis." Ibid.

      Courts consider various factors in assessing exigency.          Ibid.   The

following factors are relevant to our inquiry in this case: "the degree of urgency

involved and the amount of time necessary to obtain a warrant"; "the possibility

of danger to police officers guarding the site of contraband while a search

warrant is sought"; "the gravity of the offense involved"; "the possibility that

the suspect is armed"; and "the strength or weakness of the facts establishing

probable cause[.]" State v. DeLuca, 325 N.J. Super. 376, 391 (App. Div. 1999),

aff'd as modified, 168 N.J. 626 (2001).

      Having considered the totality of the circumstances as they unfolded after

Detective Lorady stopped defendant's vehicle, we are satisfied exigent

circumstances existed to justify the warrantless strip search.      Specifically,

following the K-9 dog's detection of narcotics in defendant's vehicle, his nervous

demeanor and evasive actions while Lorady attempted to perform a protective

pat down,7 heightened the officer's suspicions that defendant "possibly was


7
   Following oral argument, with our permission, the State and the Public
Defender filed supplemental briefs addressing State v. Evans, ____ N.J. ____
(2018), which was decided by the Supreme Court after the initial briefs were
filed. The Court in Evans applied the plain feel exception to the Statute,


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                                       17
adjusting a weapon" in his groin area. Although defendant prevented Lorady

from completing the pat down at the side of a busy highway, Lorady felt a hard

object and was cognizant of the CI's information that defendant was "known to

be armed during the course of these narcotics investigations and the fact that so

far the information that was provided to [Lorady] all added up."

      Moreover, having lawfully arrested defendant, Lorady had "the right and

duty to search him for weapons and contraband before placing him in a patrol

car." State v. Gibson, 218 N.J. 277, 299 (2014). "It also follows that the police

have the authority to ensure, at headquarters, that a person under arrest is not

armed with a weapon." Ibid.

      Nonetheless, defendant argues there was no exigency here to justify the

strip search because he could have remained handcuffed and under police

surveillance while the officers applied for a warrant to strip search him. That

position fails to appreciate the potential danger to the officer charged with



recognizing "'tactile discoveries of contraband' may justify a warrantless search
. . . if the officer 'feels an object whose contour or mass makes its identity
immediately apparent.'" Id. at ___ (slip op. at 17-19) (citing Minnesota v.
Dickerson, 508 U.S. 366, 375 (1993)). Because we find defendant's conduct
prevented the officer from completing the pat down, here, we need not reach the
plain feel exception to the search warrant requirement recently approved by the
Court.



                                                                         A-3619-17T1
                                      18
guarding defendant in some area of the police station, or to other prisoners or

members of the public at large. Rather, as the Office of the Attorney General

noted in its amicus brief, had the officers applied for a warrant, defendant "most

likely [would] have [been] placed in a holding cell at the police station, thereby

triggering . . . the detention provision of the . . . [S]tatute." See N.J.S.A.

2A:161A-1(c). We agree that under those circumstances, it was untenable to

delay the search to obtain a warrant.

      In sum, defendant's actions in resisting the pat-down search created

exigent circumstances justifying the warrantless strip search, and it was not

reasonable to expect the officers to apply for a search warrant. Because Lorady

believed defendant was concealing a weapon, the officer reasonably removed

defendant from the side of a busy highway to the police station, and obtained

his supervisor's permission to conduct a strip search in accordance with accepted

procedures. We therefore conclude that the motion record supports the judge's

conclusion that exigent circumstances properly justified the warrantless strip

search.

      Affirmed.




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                                        19
