Warrantless Searches
Motor Vehicles / §3.5
STATE OF NEW JERSEY v. WITT
Supreme Court of New Jersey
___ N.J. ___ (9-24-2015)
QUESTION: Under New Jersey law, should State v. Pena Flores continue to provide the
constitutional standard governing a search of a motor vehicle under the automobile exception?
ANSWER: NO. “[T]he constitutional standard governing an automobile search in State v.
Pena-Flores, 198 N.J. 6 (2009), is unsound in principle and unworkable in practice.” By this case,
the New Jersey Supreme Court returns to the automobile search standard previously set forth
in State v. Alston, 88 N.J. 211, 233 (1981). Under Alston, “a warrantless search of an automobile
was constitutionally permissible, provided that the police had probable cause to search the
vehicle and that the police action was prompted by the ‘unforeseeability and spontaneity of the
circumstances giving rise to probable cause.’ ”
RATIONALE: In State v. Cooke, 163 N.J. 657, 670 (2000), the New Jersey Supreme Court
“overthrew the Alston standard and added a pure exigent-circumstances requirement to justify
an automobile search. Pena-Flores maintained the course charted by Cooke. Pena-Flores also 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 warrants as a means of
shortening roadway stops. The Court expected that its exigent-circumstances test would provide
a reliable guide to law enforcement and that telephonic warrants would present an efficient and
speedy way of curbing prolonged roadway stops. Those expectations have not come to pass.”
According to the Court:
Experience and common sense persuade us that the exigent-circumstances test in
Pena-Flores does not provide greater liberty or security to New Jersey’s citizens and has
placed on law enforcement unrealistic and impracticable burdens. First, the multi-factor
exigency formula is too complex and difficult for a reasonable police officer to apply to
fast-moving and evolving events that require prompt action. Thus, we cannot expect
predictable and uniform police or judicial decision-making. Second, the securing of telephonic
warrants results in unacceptably prolonged roadway stops. During the warrant-application
process, the occupants of a vehicle and police officers are stranded on the side of busy
highways for an extended period, increasing the risk of serious injury and even death by
passing traffic. If the car is impounded, then the occupants’ detention will be extended for an
even longer period as a warrant is procured. Third, one of the unintended consequences of
Pena-Flores is the exponential increase in police-induced consent automobile searches. The
resort to consent searches suggests that law enforcement does not consider time-consuming
telephonic warrants or the amorphous exigent-circumstances standard to be a feasible answer
to roadway automobile searches.
In this case, the police initiated a stop of defendant William Witt’s car because he did not dim
his high beams when necessary. According to Officer Joseph Racite of the Carneys Point
Township Police Department, at approximately 2:00 a.m., “while providing backup for a
motor-vehicle stop on Pennsville Auburn Road, he observed a car pass with its high beams on.
-1-
Officer Racite explained that a car must dim its high beams ‘as vehicles approach.’ Officer Racite
pursued and stopped the vehicle, and requested backup. Defendant, the driver, appeared
intoxicated and was asked to exit his car. After defendant failed to properly perform field-sobriety
and balance tests, Officer Racite arrested him for driving while intoxicated. Defendant was
handcuffed and placed in the back of a patrol car. While 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 that the officer did not have “sufficient
exigent circumstances” to conduct a warrantless vehicle search. Accordingly, the court suppressed
the handgun.
In this appeal, the Court preliminarily determined that it would not address defendant’s
constitutional challenge to the lawfulness of the initial motor vehicle stop, because he failed to
raise that issue in the court below. In this respect, the Court noted: “Defendant did not challenge
the validity of the motor-vehicle stop under N.J.S. 39:3-60 in either his brief or argument before
the trial court.” Id. Rather, he “only challenged the search of his car. A prosecutor should not
have to possess telepathic powers to understand what is at issue in a suppression hearing.”
Accordingly, “the lawfulness of the stop was not preserved for appellate review.”
Turning now to the issue of whether the Court should continue to follow the standard for
automobile searches set forth in Pena-Flores, the Court agreed with the State that the time has
come “to abandon the exigent-circumstances standard for automobile searches followed in
Pena-Flores and to return to the more traditional automobile exception to the warrant
requirement articulated in Alston, which allows for the search of a vehicle based on probable
cause arising from unforeseeable and spontaneous circumstances.”
“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 to search a vehicle ‘alone satisfies the automobile exception to the Fourth
Amendment’s warrant requirement.’ * * * The federal automobile exception does not require ‘a
separate finding of exigency in addition to a finding of probable cause[.]’ ” See Pennsylvania v.
Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487 (1996); and Maryland v. Dyson, 527 U.S. 465,
467, 119 S.Ct. 2013, 2014 (1999).
“At least as of 1981,” the New Jersey Supreme Court “did not construe the automobile
exception under Article I, Paragraph 7 of our State Constitution differently from the federal
interpretation under the Fourth Amendment. In Alston, supra, [the Court] upheld the
constitutionality of the police search of the defendants’ car based on the United States Supreme
Court’s traditional automobile exception to the warrant requirement.” According to the Alston
Court, “the exigent circumstances that justify the invocation of the automobile exception are the
unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the
inherent mobility of the automobile stopped on the highway.” Moreover, the Court made clear in
Alston “that merely because ‘the particular occupants of the vehicle may have been removed from
the car, arrested, or otherwise restricted in their freedom of movement,’ police were not required
to secure a warrant.”
In State v. Cooke, supra, the Court “broke ranks with the United States Supreme Court’s
Fourth Amendment automobile-exception jurisprudence * * * [and announced] for the first time
[that], under Article I, Paragraph 7 of our State Constitution, the warrantless search of a vehicle
could only be justified based on exigent circumstances in addition to probable cause.” Parting
-2-
ways with State v. Alston as well, the Cooke Court “imposed a full-blown exigency analysis,
holding that ‘exigency in the constitutional context amounts to circumstances that make it
impracticable to obtain a warrant when the police have probable cause to search the car.’ ”
“However, just because the circumstances giving rise to probable cause are unforeseeable and
spontaneous does not mean that it is impracticable to secure a warrant. For example, a car may
be stopped for speeding, and the officer may smell an overpowering odor of marijuana and then
arrest, handcuff, and place the driver in the back of a patrol car. Although the probable cause to
search arose in an unforeseeable and spontaneous fashion, the officer under the Cooke
exigent-circumstances standard should still obtain a search warrant because there is no danger
of evidence tampering if the car is impounded and the occupants secured.” Thus, “searches that
had been permissible under Alston were no longer lawful under Cooke.”
In State v. Pena-Flores, the Court reaffirmed the exigent-circumstances standard set forth in
Cooke. “The Court 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.’ ”
The Court then gave examples of what officers might take into account in determining
exigency:
the time of day; the location of the stop; the nature of the neighborhood; the unfolding of
the events establishing probable cause; the ratio of officers to suspects; the existence of
confederates who know the location of the car and could remove it or its contents; whether
the arrest was observed by passersby who could tamper with the car or its contents;
whether it would be safe to leave the car unguarded and, if not, whether the delay that
would be caused by obtaining a warrant would place the officers or the evidence at risk.
“The Court encouraged the use of telephonic and electronic warrants as a means to meet the
constitutional challenges of motor-vehicle stops.” Id. Interestingly, since Pena Flores, the State
Police has noted that its “state-wide consent to search requests rose from approximately 300 per
year to over 2500 per year.”
“Law enforcement’s new-found reliance on consent searches, in part, is an apparent reflection
of the difficulty presented to police officers by the Pena-Flores multi-factor exigent-circumstances
standard. Under that standard, before conducting a warrantless roadside search, police officers
must take into account a dizzying number of factors. * * * These factors leave open such questions
as ‘what is the acceptable ratio of officers to suspects, what should the officer know about the
neighborhood, how is he to know if confederates are skulking about, and what does it mean to
consider leaving the car unguarded when the car can be safely towed and impounded?’ ”
According to the Court here in Witt, the current Pena Flores approach to roadside searches
places significant burdens on law enforcement. On the other side of the ledger, we do not
perceive any real benefit to our citizenry by the warrant requirement in such cases — no
discernible advancement of their liberty or privacy interests. When a police officer has
probable cause to search a car, is a motorist better off being detained on the side of the road
for an hour (with all the accompanying dangers) or having his car towed and impounded at
headquarters while the police secure a warrant? Is not the seizure of the car and the
motorist’s detention “more intrusive than the actual search itself?” * * * For that reason, the
United States Supreme Court has concluded that “carrying out an immediate search without
-3-
a warrant” based on probable cause is “reasonable” under the Fourth Amendment. * * * We
reach the same conclusion under Article I, Paragraph 7 of the New Jersey Constitution,
subject to the caveats in Alston.
Although the Court believes that “the exigent-circumstances standard set forth in Cooke and
Pena-Flores is unsound in principle and unworkable in practice,” it did not fully adopt the federal
automobile exception.
In Alston, the Court held that “the automobile exception authorized 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.” Yet, the federal Supreme Court in Labron and Dyson make it
clear that even an unforeseeability and spontaneity requirement is not part of the federal
automobile exception.
As a result, the Court parted company from the United States Supreme Court’s interpretation
of the automobile exception under the Fourth Amendment and returned to the Alston standard,
this time supported by Article I, Paragraph 7 of our State Constitution. Alston properly balances
the individual’s privacy and liberty interests and law enforcement’s investigatory demands.
Alston’s requirement of ‘unforeseeabilty and spontaneity,’ does not place an undue burden on law
enforcement. For example, if a police officer has probable cause to search a car and is looking for
that car, then it is reasonable to expect the officer to secure a warrant if it is practicable to do so.
[This eliminates] the concern expressed in Cooke, supra —the fear that ‘a car parked in the home
driveway of vacationing owners would be a fair target of a warrantless search if the police had
probable cause to believe the vehicle contained drugs.’ * * * In the case of the parked car, if the
circumstances giving rise to probable cause were foreseeable and not spontaneous, the warrant
requirement applies.”
The Court also parted company from federal law “that allows a police officer to conduct a
warrantless search at headquarters merely because he could have done so on the side of the road.
* * * ‘Whatever inherent exigency justifies a warrantless search at the scene under the
automobile exception certainly cannot justify the failure to secure a warrant after towing and
impounding the car’ at headquarters when it is practicable to do so.” Id. “Warrantless searches
should not be based on fake exigencies. Therefore, under Article I, Paragraph 7 of the New Jersey
Constitution, [the Court] limit[ed] the automobile exception to on-scene warrantless searches.”
Id. The Court did pause to note, however, that it was not suggesting that “under appropriate
circumstances, an inventory of a car at headquarters cannot be undertaken pursuant to State v.
Slockbower, 79 N.J. 1 (1979), and State v. Ercolano, 79 N.J. 25 (1979), or that the police cannot
undertake a search based on a true exigency.”
In sum, “the exigent-circumstances test in Cooke and Pena-Flores no longer applies. We return
to the standard set forth in Alston for warrantless searches of automobiles based on probable
cause. Going forward, searches on the roadway based on probable cause arising from
unforeseeable and spontaneous circumstances are permissible. However, when vehicles are towed
and impounded, absent some exigency, a warrant must be secured.”
Since this decision is a “new rule of law,” the Court held that it is to be applied “purely
prospectively” from the date of this decision, because to do otherwise would be unfair and would
“potentially offend constitutional principles that bar the imposition of an ‘ex post facto law.’ ”
Consequently, under Pena-Flores, the applicable law at the time of the motor-vehicle stop in
this case, the police officer who arrested defendant for DWI did not have exigent circumstances
-4-
to search the car for open containers of alcohol. While it is true that a different outcome might
have been reached under the Alston standard, since this is now a new rule of law to be applied
prospectively, the Court affirmed the suppression of evidence in this case.
______________________
STATE OF NEW JERSEY v. ALSTON
Supreme Court of New Jersey
88 N.J. 211 (1981)
QUESTION: Once the occupants of an automobile are arrested for possession of contraband and
taken into police custody, and the vehicle is no longer readily movable, must the police obtain a
warrant before conducting a full search of the passenger compartment for further contraband,
even if there existed sufficient probable cause for the search at the scene?
ANSWER: NO. The right to conduct a search of a motor vehicle under the automobile exception
does not dissipate once the vehicle’s occupants are arrested and removed from the car.
RATIONALE: On the evening in question, “Bergen County Police Detectives Marc Fenech and
John Schmidig, stationed in an unmarked patrol car, pursued a Buick automobile speeding
westbound on Route 46 in Ridgefield Park. During the chase the officers observed three of the
four occupants moving about in the vehicle as if attempting to conceal something. After they
succeeded in stopping the Buick, the detectives asked the driver (Donald Alston) for vehicle
credentials, whereupon Alston opened the glove compartment, removed a large envelope, and
began looking through its contents. Detective Schmidig then shone his flashlight into the open
glove compartment and observed three shotgun shells. The four men were asked to exit from the
vehicle. The officers patted them down for weapons but found none on their persons. Detective
Fenech then returned to the Buick to retrieve the shotgun shells while his partner remained at
the rear of the car with the four occupants.” Id. at 216.
“Detective Fenech opened the front passenger door of the vehicle, reached into the open glove
compartment and took the shells. In the process, Fenech observed an opaque plastic bag lying on
the floor, protruding about twelve inches from under the front passenger seat, and covering what
appeared to be a long, thin object. The detective reached down and felt the protruding end of the
bag. Because the object ‘felt like a gun,’ he picked it up, opened the bag, and discovered that it
was indeed a sawed-off shotgun. Thereupon the four occupants of the vehicle were placed under
arrest, advised of their rights and handcuffed. A further search of the vehicle uncovered
additional weapons secreted in the passenger compartment—a revolver in a holster under the
front seat, and a .38 caliber revolver, fully loaded, wedged in a crevice between the top and
bottom halves of the back seat.” Id. at 216-17. After the weapons were removed, the vehicle was
towed from the scene.
In the court below, the Appellate Division determined that the shotgun found under the seat
was admissible, but the two revolvers seized after defendants had been placed under arrest
should be suppressed. The Appellate Division believed that the warrantless search leading to the
discovery of the handguns could not be justified under the automobile exception because, “once
the defendants were out of the car, their persons searched, and they were placed under arrest and
handcuffed, there were no longer any exigent or exceptional circumstances present justifying the
warrantless search of the vehicle.” Id. at 218. The New Jersey Supreme Court disagreed and
-5-
reversed that part of the ruling.
The automobile exception, first set forth in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280
(1925), “holds a search warrant unnecessary when the police stop an automobile on the highway
and have probable cause to believe that it contains contraband or evidence of a crime.” Alston at
230-31. “The primary rationale for this exception lies in the exigent circumstances created by the
inherent mobility of vehicles that often makes it impracticable
to obtain a warrant.” Id. at 231 (citing Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981
(1970)). In addition, “the Carroll exception is further supported by the somewhat diminished
expectation of privacy surrounding automobiles, ‘which arises from the facts that a car is used
for transportation and not as a residence or a repository of personal effects, that a car’s occupants
and contents travel in plain view, and that automobiles are necessarily highly regulated by
government.’ ” Id. [Citations omitted.]
Clearly, “probable cause is the minimal requirement for a constitutionally reasonable search
of a readily movable vehicle stopped on the highway. * * * It has been defined by this Court as
a ‘well grounded suspicion’ that a crime has been or is being committed.” Alston at 231.
Under the circumstances of this case, the Court found that “the detectives had probable cause
to conduct the search of the passenger compartment that revealed the two handguns.” Id. at 232.
[Note that the warrantless search that initially revealed the shotgun shells and the sawed-off
shotgun was found by the court below to be valid and thus was not challenged on appeal.]
According to the Supreme Court, “[t]he presence of the shotgun shells in the glove compartment
and the sawed-off shotgun under the front passenger seat, coupled with defendants’ furtive and
unusual movements in the back seat before the vehicle was stopped, afforded a more than
adequate basis for a ‘well grounded suspicion’ that defendants had secreted other weapons in the
passenger compartment of the vehicle.” Id.
Defendants also argued that “probable cause notwithstanding, a warrant was necessary for
further search of the passenger compartment, for once they were removed from the vehicle and
arrested, the car was not readily movable nor was it impracticable to secure a warrant.” Id. The
Supreme Court disagreed.
“There is ‘no difference between on the one hand seizing and holding a car before presenting
the probable cause issue to a magistrate and on the other hand carrying out an immediate search
without a warrant. Given probable cause to search, either course is reasonable under the Fourth
Amendment.’ ” Id. at 233 (quoting Chambers v. Maroney, supra at 52, 90 S.Ct. at 1981).
“Because of its inherent mobility, a motor vehicle that has been stopped on a highway may be
searched without a warrant when probable cause exists to believe that the vehicle contains
articles that the police are entitled to seize. * * * Therefore, once the defendants were arrested
on weapons charges, and given the probable cause to search the passenger compartment of the
vehicle for further weapons, Chambers provides that it was equally permissible for the police
either to conduct an immediate search at the place of the stop or to seize the vehicle and remove
it to a police station before conducting the search.” Alston at 233.
In this regard, “the exigent circumstances that justify the invocation of the automobile
exception are the unforeseeability and spontaneity of the circumstances giving rise to probable
cause * * * and the inherent mobility of the automobile stopped on the highway.” Id. [Citation
omitted.]
Thus, in this case, “the defendants’ speeding vehicle was stopped on the highway for reasons
wholly unconnected with the reason for the subsequent seizure. * * * The unanticipated
circumstances that gave rise to probable cause to search for concealed weapons developed swiftly.
-6-
Given that the detectives had probable cause to believe that dangerous weapons were concealed
in the passenger compartment of the vehicle, the vehicle’s inherent mobility and the potential
danger posed by the presence of weapons were sufficient exigent circumstances to justify a
warrantless search.” Id. at 234.
“These exigent circumstances do not dissipate simply because the particular occupants of the
vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom
of movement. * * * The characterization of ready mobility of the vehicle as envisioned by
Chambers is applicable to the vehicle itself, and the car is readily movable until such time as it
is seized, removed from the scene and securely impounded by the police. Until then it is
potentially accessible to third persons who might move or damage it or remove or destroy
evidence contained in it. Under Chambers, however, when there is probable cause to conduct an
immediate search at the scene of the stop, the police are not required to delay the search by
seizing and impounding the vehicle pending review of that probable cause determination by a
magistrate. ‘[T]here is little to choose in terms of practical consequences between an immediate
search without a warrant and the car’s immobilization until a warrant is obtained.’” Id. at 234-35
(quoting Chambers at 52, 90 S.Ct. at 1981).
“Accordingly, the search of the vehicle that revealed the two handguns was justified as within
the automobile exception to the warrant requirement.” Id. at 235. All the weapons, therefore, are
admissible.
-7-