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 __ NJ __ (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.”
4. a. A person who fails to install an interlock device ordered by the court in a motor vehicle owned, leased or regularly operated by him shall have his driver's license suspended for one year, in addition to any other suspension or revocation imposed under R.S.39:4-50, unless the court determines a valid reason exists for the failure to comply. A person in whose vehicle an interlock device is installed pursuant to a court order who drives that vehicle after it has been started by any means other than his own blowing into the device or who drives a vehicle that is not equipped with such a device shall have his driver's license suspended for one year, in addition to any other penalty applicable by law.