NJ Court Mulls Easing Rules for Warrantless Auto Searches Michael Booth, New Jersey Law Journal April 14, 2015 |

The New Jersey Supreme Court on April 14 heard arguments over whether it should scrap its six-year-old ruling that governs the standards police must follow when conducting automobile searches without first obtaining a warrant. During a hearing that lasted two-and-a-half hours, a state prosecutor asked the court to revert back to the standard set in a 1981, saying the current standard is unworkable and has led to a situation where too many motorists who have been stopped along the state’s roadways are being asked by the police to sign a consent to search on the spot. In State v. Witt, assistant attorney general Ronald Susswein asked the court to overturn its 2009 decision in State v. Pena-Flores, which requires both probable cause and exigent circumstances for warrantless vehicle searches by police.

Susswein urged the court to reinstate the prior standard, established in its 1981 ruling in State v. Alston, that the inherent mobility of an automobile, and the unforeseeability and spontaneity of the circumstances that give rise to probable cause, provide the exigent circumstances that permit a search without a warrant, even where the occupants have been removed from the car, arrested or otherwise restricted. The Pena-Flores court split 4-3 in overturning Alston and replacing it with a narrower automobile exception to the warrant requirement based on the New Jersey Constitution, which offers greater protection than the Fourth Amendment to the U.S. Constitution. “We wouldn’t have to return to [the Alston] standard if we didn’t leave it,” Susswein told the court. “It was a distinct doctrine and it worked well.”

The Alston standard was “sound, workable, relied upon and should be restored,” he said.
Susswein said he was concerned that police are now more likely to ask for a consent to search rather than obtain a warrant. Those requests are becoming more frequent, he said, even in an era where the use of cellphones has become more routine and judges, theoretically, are supposed to be available to review warrant applications.
Justice Barry Albin noted that there is a “high degree of coerciveness” when there are requests for consent to search. While they are lawful, Susswein said he had concerns about their coercive nature as well.
“Unwittingly, Pena-Flores enlarged the ambit of police discretion,” he said. “If you restore Alston, you’ll simply be restoring a system that worked well for 25 years.”

Chief Justice Stuart Rabner noted that Pena-Flores is still the court-mandated standard. “There is justification for overturning it,” Susswein said. “It’s unsound in principle. It’s unworkable in reality.” The theory that warrants could be more easily obtained because of the rising use of cellphones has not worked, he said, pointing out that in a pilot program in Burlington County, it took an average of 59 minutes to get a warrant approved over the phone. “Judges are not telemarketers. They’re not waiting by the phone,” Susswein said, adding that during the day most will be in court and will have to leave the bench to deal with applications.
Justice Anne Patterson asked if the wait time had only been 20 minutes instead of 59, would the state be making its application. “Maybe not,” Susswein conceded.

Assistant Deputy Public Defender Stephen Kirsch, representing defendant William Witt, told the court there was no reason to overturn Pena-Flores. “The question is, what are the special circumstances” needed to overturn precedent, Kirsch said. “The state didn’t give you any reason to adopt the dissent” in Pena-Flores, he said. “They just point to it and say, ‘That’s what we want.’” Albin asked Kirsch to discuss the coerciveness of consents to search requests. The police must have probable cause in order to ask for consents to search, Kirsch said. “There’s nothing wrong with that,” Kirsch said. “There always is a measure of coerciveness when someone is asked to give up any rights.”

Albin said that a driver sitting on the side of the road is likely to face greater restrictions, as opposed to a person at home who could “slam the door and tell them to leave” if the police ask to consent to a search of the home.
Albin asked Kirsch if he was concerned about the increased usage of consents to search.
“I am not, as long as they’re relying on probable cause,” Kirsch said. Kirsch added that being able to reach a judge by phone should become more routine. “The technology is not getting harder,” he said. “This is not some space-age technology.” The American Civil Liberties Union of New Jersey, the New Jersey State Bar Association and the Association of Criminal Defense Lawyers of New Jersey participated as amici. Lawyers for those groups all urged the court to not overturn Pena-Flores. Witt was involved a traffic stop in Carney’s Point, at around 2 a.m. Dec. 19, 2012, according to court documents. The officer was in the middle of a traffic stop with another driver when he left to pursue Witt, whom the officer claimed was improperly using his high beams. He followed Witt and pulled him over.

The officer said Witt, the sole occupant, appeared intoxicated, so the officer called for backup and conducted a field sobriety test, which Witt failed, court documents said. The officer arrested Witt for drunken driving, handcuffed him and placed him in the back seat of the police car. In a search of Witt’s car at the scene for open containers of alcohol, the officer found a loaded handgun in the center console, according to court documents.
A Salem County grand jury indicted Witt on firearms charges, and he moved to suppress the weapon on the ground that insufficient exigency existed to justify the search under the automobile exception to the warrant requirement. Superior Court Judge Timothy Farrell granted the motion in August 2013, finding that the search violated Pena-Flores.

The Appellate Division allowed an interlocutory appeal and affirmed in a precedential opinion May 21, 2014, just 15 days after hearing argument, stating, “We are bound by Pena-Flores, because of the utter absence of any exigency to support the warrantless vehicle search.” Appellate Judges Clarkson Fisher Jr., Ellen Koblitz and Amy O’Connor said the state’s appeal was a “quixotic attempt to obtain a change in the currently applicable legal principles.” Fisher, writing for the panel, said leave to appeal was granted because the general practice was to allow for appeals when suppression motions were granted. The state last attempted to overturn Pena-Flores three years ago in State v. Shannon. There, the state argued that the impact on police practices justified getting rid of the 2009 holding, but the court dismissed the appeal in February 2012, saying the State Police motor vehicle data prosecutors presented was too sparse.

Since Pena-Flores was decided, the composition of the court has changed. Only one member of the majority, Justice Jaynee LaVecchia, remains, while two of the dissenters—Rabner and Albin—are still there. There are also three new justices: Anne Patterson, Faustino Fernandez-Vina and Lee Solomon, who, like Rabner and Albin, is a former prosecutor.

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