The NJ Supreme Court changed again the standards on car searches. I wanted to share this case with attorneys, prosecutors, court staff, police and judges
State v. Witt Warrantless auto search permitted on probable cause without telephonic warrant 223 NJ 409 (2015)
The NJ Supreme Court held the exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in practice. Citing Article I, Paragraph 7 of New Jersey’s State Constitution, the Court returns to the standard articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: The automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.
In this appeal, the Court addresses the constitutional standard governing an automobile search and considers whether to continue to follow the standard set forth in State v. Pena-Flores, 198 N.J. 6 (2009).
Defendant William L. Witt was charged in an indictment with second-degree unlawful possession of a firearm and second-degree possession of a weapon by a convicted person. The police initiated a stop of defendant’s car because he did not dim his high beams when necessary, and a search of his vehicle uncovered the handgun.
Defendant moved to suppress the gun on the ground that the police conducted an unreasonable search in violation of the New Jersey Constitution. Defendant’s sole argument was that the police did not have exigent circumstances to justify a warrantless search of his car under Pena-Flores. At the suppression hearing, Officer Racite testified that at approximately 2:00 a.m., while providing backup for a motor-vehicle stop, he observed a car pass with its high beams on.
The officer explained that a car must dim its high beams “as vehicles approach.” Thus, Officer Racite stopped the vehicle, and requested backup. Defendant, the driver, appeared intoxicated and was asked to exit his car. Defendant then failed field-sobriety and balance tests, and Officer Racite arrested him for driving while intoxicated. Defendant was handcuffed and placed in the back of a patrol car. While Officer Racite searched defendant’s vehicle for “intoxicants,” he found a handgun in the center console. With Pena-Flores as its guide, the trial court found as follows: the officer had a right to stop defendant’s car based on an “unexpected” occurrence and had probable cause to search for an open container of alcohol, but did not have “sufficient exigent circumstances” to conduct a warrantless search. Accordingly, the court suppressed the handgun.
The Appellate Division granted the State’s motion for leave to appeal and affirmed the suppression of the gun “because of the utter absence of any exigency to support the warrantless vehicle search that occurred,” and “because there was no justification for this motor vehicle stop.” 435 N.J. Super. 608, 610-11 (App. Div. 2014). The panel declined to address the State’s argument that the exigent-circumstances test in Pena-Flores “should be replaced because it has proved to be unworkable and has led to unintended negative consequences,” explaining that, as an intermediate appellate court, it had no authority to replace Pena-Flores with some other legal principles.
The panel also agreed with defendant’s argument, raised for the first time on appeal, that Officer Racite did not have a reasonable and articulable suspicion to stop defendant because the relevant statute (N.J.S.A. 39:3-60) requires drivers to dim their high beams only when approaching an oncoming vehicle within 500 feet.
The Court granted the State’s motion for leave to appeal.
HELD: The exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in practice. Citing Article I, Paragraph 7 of New Jersey’s State Constitution, the Court returns to the standard articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: The automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.
1. Before addressing the parties’ arguments on the constitutional standard governing the search of defendant’s vehicle, the Court disposes of his challenge to the lawfulness of the stop. Defendant did not challenge the validity of the motor-vehicle stop before the trial court, but now claims that the filing of a motion to suppress under Rule 3:5-7(a) required the State to justify every aspect of the warrantless search, including the initial stop. The Court rejects defendant’s contention and concludes that the Appellate Division should have declined to entertain the belatedly raised issue. The Court reverses the Appellate Division on this point and holds that the lawfulness of the stop was not preserved for appellate review.
2. Having addressed defendant’s challenge to the lawfulness of the stop, the Court turns to the constitutional standard governing the search of defendant’s vehicle. The automobile exception to the warrant requirement -- as defined by the United States Supreme Court in construing the Fourth Amendment -- authorizes a police officer to conduct a warrantless search of a motor vehicle if it is “readily mobile” and the officer has “probable cause” to believe that the vehicle contains contraband or evidence of an offense. Under federal law, probable cause alone satisfies the automobile exception to the warrant requirement. The federal automobile exception does not require a separate finding of exigency in addition to a finding of probable cause, as is the case in New Jersey. The overwhelming majority of states have adopted the federal approach to the automobile exception and do not require exigency beyond the inherent mobility of the vehicle.
3. In State v. Alston, 88 N.J. 211 (1981), the Supreme Court of New Jersey upheld the constitutionality of the search of the defendants’ car based on the United States Supreme Court’s then-articulated automobile exception to the warrant requirement. In doing so, the Court stated that “the exigent circumstances that justify the invocation of the automobile exception are the unforseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway.” Id. at 233.
However, in State v. Cooke, 163 N.J. 657 (2000), the Court announced that, under Article I, Paragraph 7 of New Jersey’s State Constitution, the warrantless search of a vehicle could only be justified based on exigent circumstances in addition to probable cause. Pena-Flores reaffirmed the standard enunciated in Cooke, and declared that “the warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant.” 198 N.J. at 28. The Court further set forth a multi-factor test to guide police officers in determining whether exigent circumstances excused the securing of a warrant, and encouraged the use of telephonic and electronic warrants as a means to meet the constitutional challenges of roadway stops.
4. In the wake of Pena-Flores, this Court created the Supreme Court Special Committee on Telephonic and Electronic Search Warrants, which issued a report in January 2010. The Committee concluded that safety and police resource concerns dictated that search-warrant applications be completed in no more than 45 minutes, with an ideal goal of 30 minutes. The Committee further outlined six steps to be taken in securing a telephonic search warrant when a police officer believes that there is probable cause to search. Thereafter, the Administrative Office of the Courts conducted two pilot programs. The first lasted only two months and yielded little usable data.
The second ran in Burlington County from September 2011 to March 2012. During that period, the State Police and local law-enforcement agencies filed 42 telephonic automobile search-warrant applications. The average request for an automobile warrant took approximately 59 minutes, from the inception of the call to its completion. Separately, the State Police reported to the Administrative Office of the Courts that Troop C applied for 16 telephonic search warrants, with the process taking, on average, 1.5 to 2 hours. The State Police also reported that since Pena-Flores, its state-wide consent to search requests rose from approximately 300 per year to over 2500 per year, and that its patrol policy is to exhaust the consent search option prior to making a determination to seek a warrant, telephonic or in-person.
5. In State v. Shannon, 210 N.J. 225, 227 (2012), the Court declined the State’s request to revisit Pena-Flores, finding that the motor-vehicle data submitted by the State was insufficient “to establish the ‘special justification’ needed to depart from precedent.” However, the Court invited the parties to amass and develop a more thorough, statistical record relating to motor vehicle stops by the State Police and local authorities. Thereafter, the Office of Law Enforcement Professional Standards published a report entitled “The Effects of Pena-Flores on Municipal Police Departments.” The one firm conclusion reached by the report was that “after the Pena-Flores decision, there was a noticeable increase in consent to search requests for both municipal departments and the State Police; even with only a slight increase in the number of motor vehicle stops.”
6. Resolution of the issue before the Court implicates the doctrine of stare decisis. Because stare decisis promotes consistency, stability, and predictability in the development of legal principles and respect for judicial decisions, a “special justification” is required to depart from precedent. That said, stare decisis is not an inflexible principle depriving courts of the ability to correct their errors. Among the relevant considerations in determining whether to depart from precedent are whether the prior decision is unsound in principle and unworkable in practice. The Court,
therefore, turns to consider whether Pena-Flores is furthering the constitutional values that are protected by the New Jersey Constitution and whether there is “special justification” for departing from it.
7. The use of telephonic search warrants has not resolved the difficult problems arising from roadside searches, as the Court expected when it decided Pena-Flores. Prolonged encounters on the shoulder of a crowded highway may pose an unacceptable risk of serious bodily injury and death to both police officers and citizens. Moreover, the seizure of the car and the motorist’s detention may be a greater intrusion on a person’s liberty interest than the search is on a person’s privacy interest. Finally, the dramatic increase in the number of consent searches since Pena-Flores is apparently an unintended consequence of that decision, reflecting the difficulty presented to police officers by the Pena-Flores multi-factor exigent-circumstances standard. The Court is concerned about consent searches in such great numbers, particularly in light of the historic abuse of such searches and the coercive effect of a search request made to a motorist stopped on the side of a road. The Court, therefore, concludes that the current approach to roadside searches premised on probable cause places significant burdens on law enforcement without any real benefit to the public.
8. Although the Court determines that the exigent-circumstances standard set forth in Cooke and Pena-Flores is unsound in principle and unworkable in practice, it does not adopt the federal standard for automobile searches because it is not fully consonant with the interests embodied in Article I, Paragraph 7 of the State Constitution. The Court returns to the Alston standard, which states that the automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous. The Court’s decision limits the automobile exception to on-scene warrantless searches, unlike federal jurisprudence, which allows a police officer to conduct a warrantless search at headquarters merely because the officer could have done so on the side of the road.
9. The Court’s decision is a new rule of law to be applied prospectively. Therefore, for purposes of this appeal, Pena-Flores is the governing law. However, going forward, the exigent-circumstances test in Cooke and Pena-Flores no longer applies, and the standard set forth in Alston for warrantless searches of automobiles based on probable cause governs.
The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.
JUSTICE LaVECCHIA, DISSENTING, expresses the view that the State has not shown a special justification to merit departure from settled law, and, therefore, stare decisis should prevail. Justice LaVecchia asserts that, contrary to the majority’s characterization, Cooke and Pena-Flores are not “unsound in principle,” and, further, the State has failed to show that the current law is “unworkable in practice.”
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Fax) 732-572-0030 www.njlaws.com