*1 JERSEY, PLAINTIFF-APPELLANT, STATE OF NEW v. WITT, WILLIAM L. DEFENDANT-RESPONDENT. Argued April 14, Decided September 2 015 *4 Susswein, General, Attorney Ronald Assistant argued the cause (John appellant Hoffman, for J. Acting Attorney General of New Jersey, attorney). Kirsch,
Stephen Defender, Deputy W. Assistant argued Public Krakora, respondent the cause (Joseph Defender, for E. Public attorney).
Brooks argued H. Leonard the cause for amicus curiae Associa- tion of Lawyers Jersey Criminal (Coughlin Defense of New Duffy, attorneys; Sullivan, Mr. and Leonard Michael J. of counsel and brief). on the argued
Alexander R. Shalom the cause for amicus curiae Amer- (Ronald Chen, ican Civil Jersey Liberties Union of New K. Rutgers Rights Constitutional Clinic & Center Law Justice Barocas, Shalom, Chen, L. attorneys; Edward Mr. Mr. Mr. Bancas, LoCicero, brief). and Jeanne M. counsel on the
Jeffrey argued Evan Gold the cause for amicus curiae New (Paris Jersey Eliades, President, Bar Association P. Gold & Associates, Law, attorneys; Eliades, and Yonta Mr. Gold Mr. Gold, counsel; Yonta, Moles, Kimberly Mr. A. and Justin M. brief). on the *5 opinion of the Court. ALBIN delivered
JUSTICE
to
whether
appeal, we are called on
determine
In this
in
v.
governing an automobile search
State
constitutional standard
(2009)
Pena-Flores,
is unsound
198 N.J.
practice.
and
principle
unworkable
Penar-Flores,
a deeply
A.2d
supra, 198 N.J.
In
departure
its
from the standard
Court reaffirmed
divided
Alston,
211, 233,
v.
N.J.
forth in State
automobile searches set
(1981).
Alston,
that a
In
we determined
warrant-
A .2d
constitutionally permissible,
an automobile was
less search of
probable
police had
cause to
vehicle
provided that the
search
“unforeseeability
by the
police
prompted
and
action was
giving rise to
spontaneity
and
of the circumstances
233, 235,
our State exigent-circumstances requirement justify to pure and added maintained the course charted automobile search. Pena-Flores guide a multi-factor test to Pena-Flores also set forth Cooke. determining exigent circumstances ex police officers in whether securing encouraged a warrant and use cused roadway stops. The shortening as means telephonic warrants expected exigent-circumstances provide a Court that its test would guide telephonic law and that warrants reliable enforcement speedy way curbing prolonged and present would an efficient pass. roadway stops. expectations Those have not come to persuade exigent- that the Experience and common sense us provide greater does circumstances test Pena-Flores liber- Jersey’s ty security placed on law to New citizens has First, impracticable enforcement unrealistic and burdens. exigency complex too difficult for multi-factor formula is fast-moving evolving apply reasonable officer Thus, expect pre- require prompt action. we cannot events *6 Second, judicial police decision-making. dictable and uniform or securing telephonic pro- the of in unacceptably warrants results longed roadway stops. During warrant-application the process, occupants police the of a and vehicle officers are on the stranded busy highways side period, increasing of extended the risk injury of by passing serious and even death traffic. If ear is impounded, occupants’ then the will detention be for an extended longer period Third, even procured. as a warrant of one consequences unintended is the in- exponential Pena-Flores police-induced crease in consent automobile searches. The resort suggests to consent searches law enforcement not does time-consuming telephonic amorphous consider warrants or the exigent-circumstances roadway to standard be a feasible answer to heavy searches. automobile The reliance on consent searches is of great given concern historical abuses associated with such potential searches and the for future abuses. salutary to pur-
Adherence stare decisis serves a number of poses, including promoting certainty stability in law. our However, misguid- stare decisis is not a command to continue on a tight policy. ed course to hold to a failed We do not overturn precedent lightly, certainly good special not without cause or a justification. special good Because we believe that cause and here, justification present are to we return the standard that governed automobile searches in Alston —a standard that is more jurisprudence jurisdictions, in yet line with most other still protective right of the of citizens to be free from unreasonable searches.
I. A. charged Defendant William L. was an indictment with Witt firearm, second-degree possession unlawful of a 2C:39- N.J.S.A. 5(b), second-degree possession weapon by of a a convicted 2C:39-7(b). person, police stop N.J.S.A. initiated a defen- necessary. high beams when car he did dim his dant’s because handgun. vehicle uncovered A search defendant’s that the suppress gun ground on Defendant moved of the New police an unreasonable search violation conducted argument support of his Jersey Defendant’s sole Constitution. motion, argument in a and oral to the presented both letter brief court, exigent not have circumstances trial was that did car justify a search of his under Pena-Flores. warrantless stop. challenge validity of the motor-vehicle Defendant did not hearing, only suppression At the one witness testified —Officer Carneys Township Department. Joseph Point Police Racite of Racite, According 2:00 approximately a.m. on Decem- Officer 19, 2012, stop providing backup for motor-vehicle ber while *7 Road, pass high he a car with its Pennsville Auburn observed explained high Racite that a car dim its beams on. Officer must approach.” pursued and beams “as Officer Racite vehicles vehicle, Defendant, requested backup. stopped the the driv- er, appeared intoxicated and asked to exit his car. After was perform properly field-sobriety to and balance defendant failed tests, driving arrested Officer Racite him for while intoxicated. placed patrol Defendant handcuffed and in the back of a car. was “intoxicants,” Racite for he While searched defendant’s vehicle handgun found a in the center console. guide, court
With Pena-Flores as its the trial made the follow- findings: ing right stop officer had a to car based defendant’s “unexpected” an to search occurrence and had cause alcohol, open for an container of but did have “sufficient exigent to conduct a warrantless search. Accord- circumstances” ingly, suppressed handgun. court Appellate granted to
The Division the State’s motion for leave appeal.
B.
Appellate
suppression
The
Division
the trial
affirmed
court’s
gun
any
support
exigency
“because of the utter absence of
occurred,
the warrantless vehicle search that
and because there
justification
Witt,
was no
stop.”
for this motor vehicle
State v.
608, 610-11,
N.J.Super.
First,
(App.Div.2014).
A.3d 664
panel declined to
argument
address the State’s
exigent-
that the
circumstances
test
replaced
Pena-Flores “should be
because it
proved
has
to be unworkable and has
negative
led to unintended
consequences.” Id. at
panel
that,
Second, Pena-Flores, in applying panel determined that the suppression evidence at the hearing “suggest[ anything did not ] exigency close to an permit would a motor vehicle search without a warrant.” Id. at 90 A emphasized 3d 664. It stop early occurred morning when defendant was alone; driving search, during the defendant was “handcuffed” and vehicle”; police “seated the back of a and the had no object reason to believe that the of the “open containers search — of alcohol”—would not still be in the car “once a warrant was obtained.” Ibid.
Third, panel agreed argument, with defendant’s raised appeal, the first time on that Officer Racite did not have a “reasonable suspicion” and articulable stop defendant for violat ing N.J.S.A. 39:3-60 requires because the statute drivers to dim “ high only their ‘approaching] beams when oncoming vehi ” 614-16, cle’ within five hundred feet. Id. at (quoting A.3d 664 39:3-60). panel N.J.S.A. reasoned that the officer’s vehicle “oncoming was not an vehicle” because it parked was when high defendant drove with active beams. Id. at *8 90 A .3d 664. Because the operation officer’s vehicle was not “in and in the opposite ear, lane of traffic view, to” defendant’s in panel’s the Officer right stop Racite had no him. Ibid.
C. granted We the State’s appeal. motion for leave to State v. Witt, (2014). 219 N.J. granted We also the motions of the Association of Lawyers Criminal Defense of New Association, the American
Jersey, Jersey Bar the New State Jersey amici curiae. participate as Liberties Union of New Civil
II. parties’ arguments on the constitu addressing Before vehicle, we governing tional standard the search defendant’s was stop, lawfulness which dispose challenge of his to the Appellate first Division. Defendant raised for the time before stop under challenge validity of the did not motor-vehicle argument trial before the 39:3-60 either his brief N.J.S.A filing of a motion to court. Defendant now claims that mere 7(a) justify every required the “to suppress under Rule 3:5— search,” including stop, initial which aspect of the warrantless challenge suppression hearing. not at the he did reject disprove must defendant’s contention the State We by suppression hearing. at a Defen- issues not raised the defense not in approach compel the State to cover areas dant’s would dispute from fear that an abbreviated record will leave it vulnera- appeal. if the defense raises issues for first time on ble needlessly shadow Requiring disprove the State to issues will suppression hearings result waste of lengthen in an enormous judicial resources. 3:5-7(a) aggrieved provides person claiming
Rule that “a to be may suppress ... ... by apply an unlawful search and seizure aggrieved an “claimfed] the evidence.” Defendant never to be stop. only challenged the ear. A unlawful” He search of his telepathic possess powers to under- prosecutor should not have to suppression hearing. is at stand what issue 39:3-60, using pertinent part, prohibits N.J.SA. driver high “approaches oncoming vehicle within his beams when he statute, five hundred feet.” Based on a violation of that Officer stopped Raeite car. Because the defense did defendant’s validity hearing, the question stop suppression at the light is barren of shed on this issue. For record facts would example, only the record that Officer Raeite was on the discloses assisting backup stop the road on a when side of as motor-vehicle *9 approached using high defendant his beams. do not We know on which side of the patrol positioned, road Officer Racite’s car was whether facing vehicle, Raeite was in his car defendant’s operational. whether Racite’s car Importantly, was no testimony any was elicited travelling whether other cars were opposite lane from defendant at the time because the issue was of no moment.
Generally, points divergence “the developed pro ceedings before a trial court define the metes and bounds of Robinson, appellate 1,19, review.” State v. 200 N.J. 974A.2d 1057 (2009). Parties must make positions known their suppres hearing sion so that the trial court can rule on the issues before it. reasons, jurisprudential See ibid. For sound exceptions, with few “ appellate ‘our questions courts will decline to consider or issues properly presented to the trial court opportunity when an for ” presentation such a is available.’ Id. at 974A.2d (quoting Co., Royal 229, 234, Nieder v. Indem. Ins. 62 N.J.
(1973)). unfair,
We conclude that it contrary would be to our rules, established to decide the stop lawfulness of the when the deprived opportunity State was of the establish record that might have through questions resolved the issue a few to Officer court, moreover, Raeite. The trial was never called on to rule on circumstances, stop. the lawfulness of the Appel- Under the late Division should have belatedly declined to entertain the raised issue. Appellate We therefore reverse the Division and hold that stop preserved the lawfulness of the appellate was not review. parties’ arguments, We now turn to the which address whether this Court should continue to follow the standard for automobile searches set forth Pena-Flores.
III. A. urges exigent-circum- this Court abandon the stances standard for automobile searches followed in Pena-Flores *10 exception to the automobile to return to the more traditional
and Alston, the requirement in allows for articulated which warrant arising unfore- probable a on cause from search of vehicle based argues that spontaneous arid circumstances. The State seeable (1) primarily the test reinstated because the Alston should be is Pena-Flores governing exigent circumstances under standard in subjective susceptible second-guessing and too too therefore (2) uniform judicial process; the standard does not lead to the (3) telephonic-warrant process system; in the court results roadway length stop, endangering the of time of a extends (4) traffic; occupants passing law en- police and vehicles’ telephonic has warrants —as the Court forcement turned not searches, checkered expected to consent which have a rather —but (5) history impounding to secure a Jersey; New and a car greater prompt is a intrusion than a search warrant constitutional short, argues that Pena- cause. the State based Flores should be overturned.
B. decisis, that, given the Defendant asserts doctrine of stare justification” overturning any “special has failed to prove well-grounded precedent. a recent Defendant and well-reasoned (1) by that this Court should stand Pena-Flores because: submits by “the presented suggests the statistical evidence the State system working get even ... is well” and will better “as the State (2) law”; Jersey’s all of its on the correct New trains officers warrants, expresses our jurisprudence preference a for search and provides greater protection its “State Constitution than does (3) counterpart”; exigency simple concept federal rule is warrant, application “get unless circumstances are such and a— evidence, safety that to do so destruction of or the would risk others”; (4) problem present consent searches do not officers police request they possess provided only make the when officers (5) suspicion; “analysis not an exigency reasonable officer,” test for excessive burden the Pena-Flores exigency “substantively is not different than the test” discussed stated, Simply Alston. given defense claims that the State has depart no reason to from Penar-Flores.
C. Echoing many arguments defendant, amici, of the made Union, American Civil Liberties Association of Criminal Defense Lawyers, Association, and State Bar individually collectively, call keep on the Court to faith with They Penar-Flores. claim that statistically State has failed to any establish or otherwise special overthrowing circumstance for present exigent-circum- requirement stance when warrant to search a pro- car is not They cured. technology note that advances in will allow more *11 timely addition, access to rejects warrants. In the State Bar notion may that “consent inherently searches be coercive” and finds that the increase in the represents number of such searches “positive impact” of the Penar-Flores decision. The American acknowledges Civil Liberties Union may consent searches be potential coercive but submits that “the abuse of consent searches by law enforcement” should not excusing police be the basis for complying officers from with the dictates of Penar-Flores and for allowing warrantless exigency. searches without either consent
IV. A. A understanding critical requires of Pena-Flores that we review jurisprudential rationales for automobile-exception to the warrant requirement. starting point Our is the text of our State and Federal Constitutions. nearly I, language, identical Paragraph Article 7 of the Jersey
New Constitution and the Fourth Amendment of the guarantee United States Constitution right “[t]he people houses, persons, effects, to be secure in their papers, and against seizures, unreasonable searches and shall not be violated”
422 “probable not issue the absence warrants shall
and that
Const,
Const,
¶I,
7;
amend. IV. Our
art.
U.S.
cause.” N.J.
provisions expresses a
jurisprudence under both constitutional
they exe
a warrant before
police officers secure
preference that
597-98,
Frankel,
586,
847 A.2d
179 N.J.
v.
cute a search. State
cert,
876,
108,
denied,
The United States (1) exception: the inherent rationales for the current automobile States, 132,153, vehicle, 267 mobility of the Carroll v. United U.S. (2) 543, (1925); 280, 285, expecta L.Ed. 551 the lesser 45 S.Ct. 69 home, v. compared in to a privacy tion of an automobile California
423
386, 391-93,
2066, 2069-70,
Carney, 471 U.S.
105 S.Ct.
85 L.Ed.2d
(3)
406,
(1985);
recognition
413-14
that a Fourth Amend
by prompt
ment intrusion occasioned
search based on
necessarily greater
prolonged
cause is not
than a
detention of the
occupants
warrant,
vehicle and its
while the
secure a
Chambers,
51-52,
1981,
supra, 399
at
U.S.
The first
expressed
rationale is
in
supra, the
Supreme
recognized
case which the United States
Court first
132,
280,
exception.
the automobile
U.S.
S.Ct.
69 L.Ed.
There,
police stopped
a ear
believed to be used
“bootleggers”
smuggle
alcohol
violation of the Prohibition
160,
287,
laws.
Id. at
The second
pervasive governmental
rationale is
due to the
vehicles,
regulation of motor
an individual is afforded a lesser
expectation
privacy in
Carney, supra,
an automobile.
471 U.S.
391-93,105
S.Ct. at
(stating
Across the Court’s Marshall, viewpoint. in a dissent have hewed to this Justice Brennan, joined by “the search [of Justice wrote that warrantless requirement permissible because warrant automobile] Fourth provide significant protection of the defendant’s would Ross, 798, 831, States v. 456 U.S. Amendment interests.” United (1982) (Marshall, J., 2157, 2176, L.Ed.2d 102 S.Ct. process seizing dissenting). Justice Marshall observed securing detaining the driver while a search warrant a car and than the actual search itself.” Ibid. He “would be more intrusive position police can therefore adhered to the that “even where safely station bring both the defendant and the automobile warrant, they police are can house the car while seek a instead to conduct an immediate permitted to decide whether Ibid, omitted). (emphasis of the car.” search *14 any contemporary Supreme We are unaware United States Justice, past present, Court has who dissented from the current exception.1 iteration of the federal automobile No federal case suggests any cited dissent wavering over now well- exception. settled automobile
B.
overwhelming
The
majority
adopted
of states have
federal
approach
exception
to the automobile
require exigency
do not
beyond
mobility
the inherent
of the vehicle.2 *******10See
Commonwealth
1 Dyson, supra, although dissenting
summary
majority's
In
from the
reversal of
Maryland
Appeals,
Breyer
Court of
Justices
and Stevens nonetheless
"agree[d]
per
opinion correctly
that the Court’s
curiam
states
law" on
468,
2014,
exception.
automobile
426 (2014) 102, 133-34 (noting that “most Gary, Pa. 91 v. 625 A.3d exception”). More adopted federal automobile states have over, exigent- recently a number of states have eliminated requirement for automobile searches. See Com circumstances (1997); Motta, 2d 676 N.E. monwealth v. Moss. — -, (2013); v. Lloyd, v. Nev. 312 P.3d State State Zwicke, (N.D.2009); Gary, supra, 91 A.3d 767 N.W.2d (R.I.1992). Werner, (Pa.); v. 1013-14 A.2d recently jettisoned exi Pennsylvania Supreme Court its adopted gent-circumstances the federal automobile standard doing exception. Gary, supra, A. Its reasons so 91 3d (1) “inconsistency” in law “complexity” were: “decisional *15 danger police to the as what circumstances constitute sufficient to (2) present”; public exigency speculative that is the such determining persons attempt will nature of whether unknown (3) tamper unguarded; with evidence in the vehicle if clear, understandable, consistent, inability Court’s to artiсulate “a support of readily applicable conception exigency sufficient to Pennsylvania Id. a warrantless vehicular search.” at 134-37. “difficult, ultimately impos it high court concluded that if not was sible, police in the field how would [it] officers to determine cases, rule in the circumstances motor vehicle search seizure endlessly at 137. of which are almost variable.” Id. noteworthy exigent require It those few states that densely among populous circumstances are the least or least country. populated Phillips, See v. 67 Haw. states State 535, 346, (1985); Elison, 228, 696 350 v. 302 14 P.2d State Mont. cert, (Ohio), denied, 1010, 537, 384, 480 N.E.2d 387-88 474 U.S. 106 S.Ct. 88 (1985); (Okla.Crim.App.2007); State, 1139, L.Ed.2d 168 P.3d 1145 468 v. Gomez (Or.2006); 1155, State v. 149 P.3d 1157 v. 91 Commonwealth Meharry, Gary, (R.I.1992); (Pa.2014); 102, Werner, 1010, A.3d 138 State v. 615 A.2d 1014 State (S.C.2007); Weaver, 479, Sweedland, 409, v. 649 S.E.2d 482 State v. 721 N.W.2d (S.D.2006); (Tenn.2009); Saine, 199, 412-13 State v. 297 207 State v. S.W.3d (Tex.Crim.App.1998); Guzman, 631, Commonwealth, v. 959 S.W.2d 634 Duncan
427 456, (2000); Sterndale, 445, P.3d 471 v. N.H. State 139 656 A.2d 409, (1995); Gomez, 777, 1, 411 v. 122 State N.M. 932 P.2d 12 (1997); Anderson, 1229, (Utah 1996) v. State 910 P.2d Bauder, 392, (plurality); 38, (2007); v. State 181 Vt. 924 A.2d Tibbles, (2010). v. State Wash.2d 236 P.3d Those degree states do not have same fast-flowing traffic on highways pose special crowded danger protracted such stops in Jersey. motor-vehicle New
C.
At least as of
this Court did not construe the automobile
I,
exception
Paragraph
under Article
7 of our State Constitution
differently
interpretation
from the federal
under the Fourth
Alston, supra,
In
upheld
constitutionality
Amendment.
we
search of
car
the defendants’
based on the United States
Supreme
exception
Court’s traditional automobile
to the warrant
requirement.
automobile-exception “recognized in Carroll and Chambers.” Id.
1311;
Stern,
see
440 A.2d
also Paul
Revamping Search-
Jurisprudence
and-Seizure
Along
Parkway,
Garden State
(2010)
Rutgers
(“Historically,
Jersey
L.J.
the New
Su
preme
aligned
analysis
exception]
[of
Court
its
the automobile
Court.”).
Supreme
with that of the United States
We did not turn
I, Paragraph
separate
7 of
Article
our
Constitution as a
rights,
controlling
source
but instead to
Chambers as
law.
Alston,
rejected
supra,
Significantly, also clear in that we made may particular occupants have been because “the vehicle car, arrested, from the or otherwise restricted their removed movement,” required not police freedom of were to secure a Last, relying N.J. at 440 A.2d on Cham- warrant. 88 1311. bers, emphasized probable to conduct we that “when there is cause police are stop, search at the scene of the immediate delay required by seizing impounding the vehicle search magis- pending probable by that determination review of cause 234-35, 1311. trate.” Id. A.2d 563-64, Martin, (1981), In v. 87 N.J. Alston, day again upheld as the search of a decided the same we exception Supreme applied car on “the automobile as based case, police officer discovered an Court Chambers.” that parked” wagon description that fit the “unoccupied station robbery. Id. A.2d the vehicle used in an armed peered through windows and ob- officer vehicle’s rear plain evidence to the crime. Id. at served view related wagon headquar- had towed A.2d 96. The officer the station ters, it Ibid. where was searched without a warrant. Chambers, held circumstances that
Citing to
we
that “the
probable
unanticipated
with
cause
furnished
officers
were
developed spontaneously.” Id. at
Although
necessary
justify
not
pursuant
a search
to thе
exception,
automobile
the Court
independent exigency
listed an
warranting
suspects
an immediate search of the vehicle: the
in the
robbery
large
armed
still
“might
any
were
have
at
returned
moment
to move the ear or
remove
ear’s contents.” Id. at
According to “Hollowing one the state’s exception, pertained automobile stops, appeared as it to traffic provided clear: that cause arose at the time of the seizure, Stern, the search the automobile was warranted.” Rutgers L.J. at 671. Colvin, 428, 429, 437, (1991),
In State v.
123 N.J.
upheld
drug suspect’s parked
we
the warrantless search of a
car
primarily
exigent-circumstances
on
general
analysis,
the basis of a
though
even
we introduced the
as
issue
one that “concerns the
case,
scope
exception.’”
police
of the ‘automobile
In that
suspected
drug
arrested the defendant for his role
transac
afterwards,
police
tion.
Id.
Shortly
29 L.Ed.2d a case search *18 private a valid warrant. parked property without a car on of Colvin, 434-35, A .2d The search of supra, N.J. at 587 1278. 123 be unconstitutional Coolidge, supra, ear in was determined to the role in police had known for some time of car’s because 2035, 460, 579. The 91 at 29 L.Ed.2d at murder. 403 U.S. at S.Ct. spontaneous or Coolidge in did not arise from probable cause circumstances. unforeseeable Colvin, “nearly of supra, all the factors found in
We
justify
warrantless search:
missing Coolidge
present”
were
lost;
“Any
surprise had
the vehicle contained
element of
been
waiting to
drugs; there were ‘confederates
move
‘contraband’
evidence’;
police
guard
‘a
special
would
detail
need
”
1278
123
at
587 A.2d
the immobilized automobile.’
N.J.
2036,
supra,
29
(quoting Coolidge,
In parted ways only not Court with the standard, automobile-exception federal but also with its own auto exception mobile in imposed articulated Alston. Cooke full- a exigency analysis, holding blown “exigency that in the constitu tional context impractica amounts to ‘circumstances make it police probable ble obtain a warrant when the have cause to ” Colvin, search the car.’ Id. at (quoting supra, A.2d 92 1278). approach any 123 N.J. 587 A.2d That eliminated vestige exception, of the automobile even the one defined in we standard, Alston. That exacting exigent-circumstances if faithful ly applied, should in securing result of search warrants in most probably automobile-search cases—and should have resulted in even in one Cooke. Alston, exigency requirement noted,
The
in
as the Cooke Court
“‘unforeseeability
spontaneity
was the
and
of the circumstances
giving
cause,
probable
rise to
mobility
and the inherent
of the
”
automobile,’
Alston,
(quoting
supra,
id. at
1311),
unanticipated
N.J.
440 A.2d
and “the
cirсumstances
ibid,
Alston,
give
probable
swiftly,”
(citing
rise to
cause occur
1311).
supra,
However, just giving circumstances rise because the it spontaneous not mean that is are and does cause unforeseeable may car example, be impracticable to secure warrant. For may overpowering the officer smell speeding, stopped handcuff, arrest, place driver marijuana then odor of Although probable cause to search patrol of a car. the back fashion, spontaneous officer in an unforeseeable and arose exigent-circumstances standard should still ob- under the Cooke danger no of evidence tain a search warrant because there is occupants impounded and the secured. tampering if the car is permissible had under Alston Accordingly, searches that been longer question under But the whether were no lawful Cooke. practicable capable gave rise to a and workable standard Cooke the facts of fairly We now turn to producing uniform results. Cooke, applied exigent-circumstances its new which Court standard. Cooke, conducting officer surveillance ob and, on one participate drug defendant transactions
served the
occasion,
suspected drugs in
N.J. at
place
a Ford Escort. 163
*20
accomplice
an
off in
driver of a car is placed secured ain patrol vehicle, and the car can be impounded, procuring of a practicable search warrant would seem in In most cases. con- trast, a warrantless would permissible search have been under the probable Alston standard because cause arose unforesee- spontaneous able and circumstances.
E.
Pena-Flores,
unfolding establishing the ratio officers cause; of the events the location of the car and could of confederates who know the existence suspects; who could it arrest was observed contents; by remove or its whether the passersby its it would be safe to leave car with the car or whether contents; tamper obtaining unguarded if be caused a whether that would and, nоt, delay at risk. warrant would the officers or the evidence place [Ibid.] acknowledged exigency assessments are diffi
The Court
“that
street,”
importance
but considered “the
cult for the officer on the
pure
rights
returning
of the
as
reason for not
“to
involved”
encouraged
analysis.”
A.2d 114. The Court
Alston
Id. at
telephonic
as a
the use of
and electronic warrants
means meet
stops.
challenges of
Id. at
the constitutional
motor-vehicle
Court
that the
should be
Y. A. Pena-Flores, Supreme In the this Court created wake Telephonic Special Court Committee on and Electronic Search Warrants, report January Report which issued its Supreme Special Telephonic Committee on and Electronic Court (2010). Special Report, Search Warrants its Committee *22 recommendations, a made number observations and some analysis. are which relevant our Special jurisdiction
The Committee that in noted no the nation procedures obtaining “had established statewide for telephonic search Special warrants.” Id. at 9. The specifically Committee Diego Project, addressed the San Search Warrant which was cited in support Pena-Flores “in widespread the more use of tele- phonic applications for Special search warrants.” Ibid. The Com- mittee that Diego commented “a closer look the project] [San only revealed that 14 of 122 search telephonic warrants were warrants, warrant, single telephonic otherwise, and not a was Ibid, solely issued for the search of an (citing automobile.” Samarkos, Laurence A. Searching Benner & Charles T. Nar- for Diego: Preliminary Findings cotics San Diego the San from (2000)). Project, Search Warrant 36 Cal. W.L.Rev. The Committee Diego study reasoned that “the San did not offer much guidance” Jersey stops for New roadside because “California the fоllows federal regarding standard warrantless automobile searches.” Id. at 10. Special
The expressed Committee dangers concerns about the police occupants officers and a car’s driver resulting and stops “on extended the of heavily-traveled highways sides seeking as an “engagefs] telephonic roads” officer a warrant.” Id. recognized The Committee also the warrant process might implicate “resource for depart- issues” smaller “safety ments. Ibid. The Committee police concluded resource concerns dictated” that search-warrant applications “be minutes, completed no more than 45 goal with an ideal of 30 minutes.” Ibid. steps the securing Committee outlined to be taken in a
telephonic search warrant when officer [that] “believes (1) there cause to search”: the must officer first (2) county’s on-duty prosecutor”; “contact[] the the officer and on-duty prosecutor must regarding then “have discussion wheth- (3) warrant”; request er or not to prosecutor search if the necessary, prosecutor, with the warrant is “believes a search connection, judge”; on-duty still contacts police officer (5) officer; (4) the officer judge an oath to must administer himself, request “identify purpose must state (6) applications”; and the officer supporting the present facts give testimony. Id. at 19. must sworn oral multiple steps, question those remained whether Given securing telephonic 30- to 45-minute timeframe Committee’s search warrants was feasible.
B. Report, Following Special the the Administrative Committee’s programs, pilot the Courts conducted two one Mercer Office of County. County Burlington Burlington Vici- and another See (Pena-Flores) Program. nage, Telephonic Pilot Search Warrants months, yield- County pilot program only lasted two The Mercer “very ing telephonic applications” and “very few search warrant Burlington the prompted little data.” Id. at 3-4. That useable County September 2011 program, which ran from to March pilot 2012. Id. 6. period,
During that Police and local law-enforcement State telephonic applica- agencies filed 42 automobile search-warrant Burlington County. average request “The for an tions in Id. minutes,” approximately 59 from warrant took automobile inception completion. to its Ibid. call
Separately, to reported the State Police the Administrative that, during County pilot Burlington Office of Courts timeframe, Troop applied telephonic program’s six-month C warrants, process taking, average, to 2 with the 1.5 search that, Pena- hours. Id. at 10. The State Police also noted since Flores, requests to from r[o]se its “state-wide consent search Ibid, year per (empha- approximately per year.” to over 2500 omitted). explained patrol sis The State Police that its “current option prior to policy practice is to exhaust consent search warrant, telephonic or in- making a determination to seek a person.” Burlington County project, Ibid. the State Police occupants’ obtained the driver’s or consent search in of the 95% stops. motor-vehicle Id. at 7.
C.
Shannon,
225, 227,
(2012),
In State v.
N.J.
A.3d 1146
we
Pena-Flores,
request
declined the State’s
finding
to revisit
the motor-vehicle data submitted
was
insufficient “to
‘special justification’
establish the
depart
prece
needed to
Pena-Flores,
challenge
dent.”
In the event of a future
we
General,
parties, including
invited the
the Attorney
“to amass and
develop a more thorough, statistical
relating
record over time
stops by
motor vehicle
the State
Police
local authorities.”
include,
Ibid.
indicated
We
that such “information should
where
(a)
(b)
possible,
the total number
stops,
of motor vehicle
conducted,
number
of warrantless
cause searches
con
requested,
conducted,
sent searches
consent searches
and vehicles
(c)
impounded
before and after
other
Pena-Flores —and
—both
relevant information.” Id. at
Following the Office of Law Enforcement Profession- published al report Standards “The entitled Effects of Pena- Municipal Departments.” Flores on Report: Police Second (2013).4 Municipal Departments Penar-Flores on Police *24 Effects of Report analyzed The by data participat- statistical submitted ing municipal police departments regarding State Police automobile searches and after before the decision Pena-Flores. The firm by one conclusion reached the Office of Professional decision, Standards was that “after Pena-Flares was a there requests increase in noticeable consent to search munici- both pal departments Police; only slight the State even with Burlington was not Court before the at the time Shannon County Study was decided. 4 The second all statistical information contained in the report incorporates first report. stops.” Id. at 38. of motor vehicle
increase the number Pena-Flores, Indeed, surged consent searches State Police since in- municipal consent law enforcement searches ten-fold and addition, the 14.5 In percent. Id. at by creased two hundred occupants operators than 95% of statistics reveal more Overall, their vehicles. Id. 19. consented to the search of Pena-Flores, municipal automo- period the number of in the after increased number of nearly due bile searches doubled contrast, By requests search warrant consent searches. statistically municipal significant departments did not increase to level, climbed but account for from the Police have and those 27, 38.6 only a number of searches. See id. at fraction of total among departments, the number of non-con- municipal At least by Conducted State Police Automobile Consent Searches Post-Pena-Flores Pre-Pena-Flores Municipal Departments by Consent Searches Conducted Automobile t-Pena-Flores Pre-Pena-Flores_Pos February was decided on 2009. Pena-Flores Although by municipal departments increased the number consent searches by April April Report nearly that this 100 from 2012 to states by police reporting departments, an in- increase better rather than reflects Report, Pena-Flores crease in the actual number of consent searches. Requests by Search Warrant Made State Police Automobile Pre-Pena-Flores Post-Pena-Flores _ _ Municipal Requests Departments Search Warrant Made Automobile Pre-Pena-Flores__Post-Pena-Flores_____
439 sent, warrantless fairly searches have remained constant before and after Penar-Flores. Id. at 32.7
VI. issue before the Court is path whether continue down the by Penar-Flores, laid Cooke and reinforced recognizing that departed Cooke from our decision in Alston. The resolution of implicates issue the doctrine stare decisis. promotes consistency,
Stare stability, decisis predict ability development legal principles respect judicial Shannon, 226, decisions. See 210 A.3d N.J. 43 reason, justification” 1146. For that “special required Brown, depart precedent. 157-58, State v. 190 N.J. 919 (2007) States, (quoting A.2d 107 v. Dickerson United 530 U.S. 443, 120 2336, 147 (2000)). S.Ct. L.Ed.2d 419
Although stare important policy goals, decisis furthers it is principle not inflexible depriving ability of the courts Snow, 12, 23, correct their errors. Fox v. 6 N.J.
(1950) C.J., (“The (Vanderbilt, dissenting) doctrine of stare decisis impotent not] [does past render[] courts to correct their errors----”); Twp. see Bergen, also White v. 77 N.J. of N. (1978) (noting 391 A.2d acceptance 911 of “Vanderbilt thesis”). Experience reveal, and further will consideration times, that a furthering goal well-intentioned decision is not it
7Warrantless Automobile Searches Based Probable Cause Pre-Pena-Flores Municipal Departments Police April April Post-Pena-Flores April April [2011] April April April keep Prior to the State Police did measurable statistics in this category. Report, supra, at Pena-Flores *26 440 judicial Therefore, “the nature of intended to advance.
was limit, revise, if and to overrule process requires power to to Shannon, 227, supra, 210 N.J. at A.3d justice 43 is to be done.” decisis is not a command to perpetuate the mistakes 1146. Stare Texas, 577, 558, v. 539 U.S. 123 S.Ct. See Lawrence past. of (2003). 2483, 508, 2472, “Among 525 the relevant 156 L.Ed.2d depart precedent determining whether considerations prior principle is unsound in [and] whether decision are Shannon, 227, 210 N.J. at 43 practice____” unworkable A .3d considered stare not Supreme Court has
The United States
decisis to be an “inexorable command” to continue
down a mistak
and,
itself
jurisprudential path
accordingly,
en
has reversed
Lawrence, supra,
577-78,
occasions. See
539 U.S.
of
number
v.
2483-84,
linger origin. because was recent Barnette, 624, 642, 1178, State Bd. Educ. v. 63 S.Ct. U.S. (1943) 1628, 87 L.Ed. Minersville Sch. (overturning 1639-40 Gobitis, 586, 600, 1010, 1015-16, v. Dist. 310 U.S. 60 S.Ct. 84 L.Ed. (1940), holding that schoolchildren cannot be compelled flag Pledge Allegiance); to salute recite Adarand Pena, Constructors, 200, 227, 2097, 2113, Inc. v. 515 U.S. 115 S.Ct. (1995) Broad., (overturning 132 L.Ed.2d Metro Inc. v. Comm’n, 547, 596-97, Fed. Commc’ns 497 U.S. 110 S.Ct. (1990), holding L.Ed.2d that all racial by government classifications made undergo actors must strict *27 scrutiny analysis). light principles, of those we now discuss whether Pena- furthering
Flores is protected the constitutional values that are by I, Paragraph Jersey Article 7 of the New Constitution and wheth- “special justification” er there is for departing from it.
VII. A. Clearly, telephonic the of use search warrants has not searches, problems arising resolved the difficult from roadside as expected Court Suрreme when it decided Pena-Flores. The Special Telephonic Court Committee on and Electronic Search greatly safety Warrants was concerned about the of officers occupants a car’s and driver and on the a heavily detained side of highway telephonic traveled or road while a warrant is secured. The Committee set a time limit the completion of such search- minutes, applications: warrant more goal “no than with ideal an Supreme Telephonic of 30 minutes.” Report, Court Warrants Nevertheless, years Pena-Flores, at 17. nearly three after Burlington County by project commissioned the Administra Office of average obtaining tive the Courts found that the time for minutes, telephonic report warrant was 59 and the State Police Troop experienced ed that C of times between 1.5 2 hours in warrant-application process. Program, Pena-Flores Pilot 6,10. supra, at hope technology perils The would reduce stops of Prolonged roadside has not been realized. encounters on range of 30 highway within the shoulder of a crowded —even bodily of may pose unacceptable risk serious to minutes — carnage reports reveal caused injury death. News posi- crashing police officers and motorists trucks into cars and highways.8 of tioned on the shoulders our of consent searches since increase in the number dramatic consequence of that apparently an unintended Pena-Flores hindsight, explanation becomes clearer. Con- decision. With roadway protracted stops while dangers sent searches avoid unpred- procured, they legal are remove search warrants complex surrounding a based on the ictability warrantless search sanguine as as We are not of factors detailed Pena-Flores. in such and amici about the benefits of consent searches defendant great numbers. subjected minority long ago, Police motorists to
Not the State grossly disproportionate basis because of consent searches on a General, Attorney Report the State profiling. racial Interim Regarding Allegations Profiling, Racial Police Review Team (1999), .us/lps/intm_419.pdf. http://www.state.nj available searches, the State Police were As result of the abuse consent supervision pursuant to a placed under the of federal monitors *28 Herrerra, 308, 325, 211 N.J. 48 A.3d consent decree. See State v. See, Solis, 8 Steph Heights Charged Crashing e.g., Seaside Man with DWI After Press, Car, 26, 2015, Asbury (police June at 9A officer into Brick Patrol Park patrol during hospitalized crashed his car course of after intoxicated driver into Koloff, Accident, Bergen stop); Van Dies traffic Abbott School Driver in GSP Record, 24, 2014, killed, (man injured, July at L-2 two others when vehicle median); Stirling, pedestrians Parkway grassy Stephen three struck car and on Accident, 20, (two Injured Star-Ledger, July in Roadside at 17 Two Officers injured, suffering police and to the head officers one broken ribs “severe cuts face,” patrol during slop); two cars traffic Stefanie after driver crashed into Charged Bergen Christopher Maag, Cop, & Crash Killed Dazio Driver in Record, 18, 2014, operating July (police at A-l officer killed while radar on SUV, tractor-trailer); by byHit rear-ended Monroe In- shoulder when Officer Courier-Post, 24, 2014, (police leg jured, at 4A officer June suffered broken during injury knee after intoxicated driver crashed into him course of traffic stop).
443 (2012) decree). (discussing independent 1009 consent “After two reported uninterrupted compliance monitors substantial and forty-five early through months from December public hearings by Advisory and after a of series conducted Standards, granted Committee on Police a judge federal joint parties’ application for termination of the decree.” consent Ibid.
Statistical data accumulated from the federal monitors’ reports
“nearly ninety-five percent
indicated that
of detained motorists
granted a
request
law enforcement officer’s
for consent to search.”
632, 644-45,
(2002)
Carty,
State v.
(citing
N.J.
Audit,
Report: Long-term Compliance
Monitors’ Second
at 8
(Jan. 2001);
Long-term
Report:
Compliance
Monitors’ Third
Audit,
2001);
(Apr.
at 8
Report: Long-term
Monitors’ Fourth
Audit,
2001)).
(July
Compliance
finding
at
reports’
The federal
requests
that 95% of
to
to
motorists accede
for consent
search is
reports.
confirmed more recent
See Pena-Flores Pilot Pro
7;
gram, supra,
14, 19.
Report, supra,
Pena-Flores
widespread
searches,
Given the
abuse of
consent
this Court
Carty
making
forbade
requests
officers
consent-search
they
suspicion
unless
had reasonable and
to
a
articulable
believe
vehicle contained contraband or
of
evidence
an offense. Id. at
Still,
A
.2d 903.
does
standard
not remove
coercive
request
a
stopped
effect of
search
made
on
to motorist
the side
recognized
Carty
inherently
of a
road. We
“the
coercive
predicament
stopped
highway
of
whо
the driver
faced
to
perceived
refusing
with the
choice
either
consent
increasing
receiving
search and therefore
the likelihood
traffic
summons,
giving
hope
escaping
consent
search
with
only
Domicz,
warning.”
State v.
N.J.
907 A.2d
(2006).
circumstances,
Under those and other like
“it is not a
imagination
stretch
assume that
individual feels
compelled
Carty,
consent.”
To Pena-Flores, Nevertheless, when it Court did decided rejection exception to expect that of the automobile would lead also be mindful police dependency on consent searches. We must may cause made on less than that consent searches be by conducted that Penar-Flores the number searches after nearly to the increased municipal police officers doubled due number consent searches. to that increase in consent willing are not conclude
We serendipitous. searches after Pena-Flores is
B. searches, in consent Law enforcement’s new-found reliance on part, difficulty presented police of the apparent reflection exigent-circumstances officers the Pena-Flores multi-factor standard, conducting a standard. before warrantless Under search, dizzying police take into a roadside officers must account Pena-Flores, A.2d 198 N.J. at number factors. questions open factors leave such as “what is These acceptable suspects, ratio of officers to what should officer he know if neighborhood, know about the how is confederates about, leaving mean skulking are and what does it to consider safely impounded?” unguarded ear when the car can be towed and (Albin, J., dissenting). Id. The statistics 965 A.2d “many suggest exigency formula has left Pena-Flores unwillingness fearing guess, with an to hazard officers suppression will result in the of critical that mistaken decision responding to For law officer evidence.” See ibid. enforcement road, rapidly evolving exigency on the side of a formula events speculative processing confounding infor requires the such expect mation that we cannot uniform and consistent decision- Thus, making. searches on the must based Pena-Flores factors inevitably widely divergent “lead to outcomes and allow trial routinely second-guess the appellate courts and courts officers eventually on the scene and themselves.” Ibid. *30 very by Pennsylvania
This is the
conclusion reached
Su-
Court,
preme
recently
which
abandoned its own multi-factor еxi-
gency analysis for warrantless
Gary,
searches of automobiles.
In
Pennsylvania high
expressed
exigency
court
its
that
requirement
court,
“is a difficult
apply,
just
standard to
for the
also,
importantly,
police
but
and more
for
operating
officers
in the
field,
in
fast-moving investigation.”
often
the midst of a
91A 3d at
135.
judicial
The court also detailed the inconsistent
outcomes
emanating
exigency
from its
standard.
Id. at
adopt-
135-36. In
ing the federal
exception,
Gary
automobile
Court acknowl-
edged
futility of
its own standard
exigency
because
“can turn
volatile,
on small
complex,
facts
the midst of
fast-moving,
stressful, and potentially threatening situation in
field.” Id.
at
Pena-Flores,
supra, wrongly
dissent in
predicted that our
exigency
prudent police
standard would lead
to impound
officers
warrant,
cars and detain their occupants
securing
while
198 N.J.
(Albin, J.,
instead,
C. Pena-Flores, that, In determining the Court exigency, stated inquiry the fundamental “[h]ow is the facts bear case on the safety preservation issues of officer and the of evidence.” Id. at (majority). However, submits, as the State typically, “police officers will not search a vehicle at roadside until control,” is, is situation under “a vehicle will not be safely.” searched until that search can be done If an automobile’s occupants are they destroy secured or so detained cannot gain or a weapon, exigency evidence access to to search the and, illusory by rights, vehicle is all a warrant should be secured. reality that, Accepting part, this means most warrantless roadside searches will by not occur—unless done consent. That Eckel, v. 185 N.J.
logic
our decision
is dictated
(2006).
888A.2d
Eckel,
of an automobile
held that the warrantless search
we
exception
under
the search-ineident-to-arrest
impermissible
removed,
arrested,
occupant has
been
once a vehicle’s driver
identified the two
Id.
Accordingly, police-citizen the routine roadside encounter exigency that lead to a warrant- unlikely genuine to involve a will less search absent consent.
D.
premised on
approach
proba-
to roadside searches
current
significant
a
law
“get
places
burdens on
ble cause —
warrant” —
perceive
ledger,
On
other
of the
we do not
enforcement.
side
any
citizenry
in
requirement
the warrant
real benefit
our
liberty
privacy
or
such cases—no discernible advancement of their
probable
to search
police
interests. When
officer has
cause
ear,
being
a motorist
off
detained on the side
the road
better
(with
having
accompanying dangers) or
car
for an hour
all the
his
impounded
headquarters
police
at
while the
secure
towed
warrant?
Is not the seizure of
car and
motorist’s deten-
Ross,
than
actual search itself’? See
tion “more intrusive
supra, 456
at
VIII. Alston, supra, exception held that the we automobile author only ized warrantless search of an when automobile probable have cause to believe that the vehicle contains contra giving band evidence of an offense and the circumstances rise spontaneous. cause are unforeseeable and 88 N.J. at *32 233, standard, 440 articulating A.2d 1311. In we believed we merely following were the test set forth the United States Supreme Dyson Court in Chambers. Labron and make clear that an unforeseeability spontaneity pаrt even and requirement is not exception. of federal automobile Here, part we Supreme from the United States Court’s inter pretation exception of the automobile the Fourth under Amend standard, and return Alston supported by ment to the this time I, Paragraph Article 7 our State properly of Constitution. Alston privacy balances the liberty individual’s and interests and law investigatory requirement enforcement’s demands. Alston’s of 1311, “unforeseeability 233, spontaneity,” id. at 440 A.2d does place example, not on law For if undue burden enforcement. police probable- looking officer has cause to search a ear and is ear, expect then it is reasonable to the officer to secure a
448 way, we if to do In this eliminate practicable it is so. warrant Cooke, in supra parked that “a car in fear expressed concern —the target driveway vacationing would be fair the home owners cause police probable if the had to believe a warrantless search 667-68, 751 In the drugs.” 163 A.2d 92. vehicle contained N.J. car, giving if the rise to parked case of circumstances require the warrant spontaneous, were cause foreseeable applies. ment it adopt approach under Constitution because
We
this
our State
competing
between
is a reasonable accommodation of the
interests
right
unreasonable
the individual’s
to be free from
searches
investigatory
“[W]e
law
demands.
have not hesitat
enforcement’s
provides
find
our citizens with
ed to
that our State Constitution
rights
greater
...
than those available under
United States
Harris,
Lewis v.
188 N.J.
Constitution.”
(2006).
occasions,
many
has found that the State
On
“this Court
against
provides greater protection
unreasonable
Constitution
v.
searches and seizures than the Fourth Amendment.” State
(2013)
Earls,
Reid,
564, 584,
(citing
214
70
N.J.
A.3d 630
State v.
(2008)
386, 389,
A.2d
(recognizing
194 N.J.
26
reasonable
information);
in
expectation
privacy
Internet subscriber
State
(2005)
McAllister,
(finding
v.
184 N.J.
875 A.2d
records);
expectation
privacy
reasonable
in bank
v.
State
Mollica,
(1989)
329, 344-45,
(finding
A.2d 1315
114 N.J.
billing records);
privacy
telephone
toll
interest
hotel-room
(1987)
Novembrino,
95, 159,
(declining
v.
A.2d 820
105 N.J.
rule);
Hunt,
good-faith exception
exclusionary
find
State v.
(1982)
(finding privacy
N.J.
450 A.2d
interest
records)).
telephone
billing
finding
toll
make that same
here
We
hewing
again
once
Alston standard.
part
jurisprudence
We also
federal
that allows
headquarters
to conduct a
search at
officer
warrantless
merely
could have
on the side of
because he
done so
the road. See
*33
Chambers,
1981-82,
supra,
IX. Today’s decision is a new rule of law that apply purely we prospectively because to do otherwise would be poten- unfair and tially principles offend constitutional imposition that bar the of an Const, Const, post I, “ex 10; § facto law.” IV, U.S. art. N.J. art. 7,113. §
The United States Constitution Jersey and the New Con prohibit stitution both Legislature the State passing an “ex Const, Const, post I, 10; facto IV, § law.” U.S. 7,§ art. N.J. art. ¶ 3. Ex The Post Facto applies equally Clause to laws that judicial Columbia, emanate from decisions. Bouie v. 378 U.S. 1697, 1702, (1964) (“If 84 S.Ct. 12 L.Ed.2d a state legislature by is barred the Ex Post Facto passing Clause from law, such a it must follow that a Supreme Court is barred the Due achieving Process Clause from precisely the same result construction.”). by judicial Ex proscribes Post Facto “[e]very Clause law that legal evidence, less,
alters the
different,
rules of
and receives
or
testimony,
required
than the law
at the time of the commission of
offence,
these,
order to convict the offender. All
laws,
manifestly unjust
similar
are
oppressive.”
Calder v.
suggest
appropriate
inventory
We do not
that under
circumstances an
of a
headquarters
Slockbower,
pursuant
car at
cannot be undertaken
to State v.
(1979),
Ercolano,
N.J.
Bull,
1 L.Ed.
3 U.S.
vested, agreeably to
rights
away,
impairs,
takes
law that
may
unjust,
be
laws,
generally
retrospective, and is
existing
391,
A.2d 1250 We However, Alston because under the Alston standard. be reached need not address applied prospectively we rule of law is new issue.
X. test in exigent-circumstances expressed, For the reasons return to the longer applies. We and Pena-Flores no Cooke searches of automo- for warrantless standard set forth Alston forward, on the Going searches probable on cause. biles based arising from unforeseeable and roadway cause based However, permissible. when vehi- are spontaneous circumstances exigency, some a warrant impounded, absent cles are towed must be secured. given prospective law and will be is a new rule of
This decision purposes of this opinion. of this For application from the date Accordingly, we affirm governing is the law. appeal, Pena-Flores Division, upheld suppres- judgment Appellate which change the Though it does not in this case. sion of evidence addressing outcome, Appellate Division erred we add that the stop that issue was not validity because of the motor-vehicle trial court. raised before the proceedings opinion.
We remand for consistent with this LaVECCHIA, dissenting. Justice paid Persistence has off.
This is not the first time that the
sought
State has
to have the
Pena-Flores,
(2009),
decision
State v.
198 N.J.
A.2d
*35
Cooke,
revisited and overturned. Pena-Flores reaffirmed State v.
(2000),
163 N.J.
The State
raising
for certification
the issue
several times. The issue was
appeal
certified as an
for the State
Deshazo,
(2011),
in
v.
State
208 N.J.
again
A.3d 742
in
Crooms,
(2011).
v.
Statе
208 N.J.
29 A.3d
appeals
Those
Shannon,
appeal
were consolidated with the State’s
in
v.
State
(2011),
dismissed,
N.J.
ing type of record protective of overturning of decided case law requested support its warrantless searches right to be free from citizens’ constitutional 43 A.3d Id. at of their vehicles. General, again State, Attorney is back through the
Now the special I still find no be overturned. asking that Penar-Flores would have dramatic action State justification support seeks and clear as to what take. Let me be this Court overturn Pena-Flores and Cooke do: I would not what I decline to rely. decisions precedent on which those the three decades of change in our today represents a radical The Court’s decision protection from warrantless It jurisprudence. lessens Jersey historically provided. has automobiles that New searches of rejects the adopts exception that majority an automobile obtaining a exigency impracticable makes need show majority says that magistrate. The a neutral warrant issued notwithstanding that just too determining exigency is difficult— exigency determinations are called on to make police frequently any longer no will be that there settings1 decrees search —and *36 exigency roadside searches of demonstrating for requirement of Jersey. occurring anywhere in the of New stopped vehicles majority mimics the exigency requirement, the By eliminating the to confront in Cooke question we were forced federal standard —a constitutionally in rejected as insufficient which we as a Court and this State. justifica- proved special it has not because has
The State
won
Indeed,
argument
showing.
the State’s
tion. It has failed
that
by shifting from
seeming recognition of that failure
demonstrates
obtaining telephonic
imprac-
is
prove that
warrants
attempting to
(2015) (noting
e.g.,
154, 168-69,
This is history in the Through of this Court. perseverance in seeking the reversal of a disliked decision with which desultory, any, the State made if comply, effort to Attorney General has wholly been rewarded on the basis inadequate Indeed, unpersuasive record. that reward is a Attorney direct result of the persistence leading General’s ato majority willing jurisprudential now to effect this change.
Ironically, majority step takes this at a time when federal jurisprudence veering away any per categories se exigency. history assumed may prove embarrassing The arc of my colleagues majority. indeed for respectfully I must view, vigorously my prevail. dissent. stare decisis should
I. presumed Stare decisis is the it course because “ensure[s] merely change erratically, the law will not develop but will in a fashion[,] principled intelligible permits ... because [and it] society presume principles bedrock are founded in the law proclivities rather than in the Vasquez Hillery, of individuals.” v. Coming Pledges Marcus, See Samantha Cams to a Near You as N.J. Body Cop 2015), (July http://www.nj.com/politics/ Millions to NJ.com Officers, Equip index.ssf/2015/07/body_cams_.coming_to_a_cop_near_you_as_nj_pledges_ *37 Office of the General, General millions_to_equip_officers.html; Attorney Attorney 2015), (July Law Directive 28, No. 2015-1 available at http://www. Enforcement state.nj.us/lps/dcj/agguide/directives/2015-l_BWC.pdf. (1986). 617, 624, 598, 254, 265, 88 L.Ed.2d 106 S.Ct. U.S. always have persuasive force we decisis ‘carries such
“Stare
supported by some
precedent
to be
required
departure
”
Hoboken,
Luchejko City
207 N.J.
special justification.’
v.
(2011)
Brown,
144,157,
(quoting
v.
190 N.J.
II.
Cooke,
directly
question
of the role
In
this Court dealt
with
question
exigency
in automobile searches —a
this Court was
following
Supreme
Court’s
required to answer
United States
Labron,
Pennsylvania
decision
v.
518 U.S.
S.Ct.
(1996)
curiam).
Labron,
(per
455
contraband,
cause exists to believe it contains
the Fourth Amend
permits
ment ...
police to search the vehicle without more.” Id.
940,
(citation
2487,
omitted);
“In view of those
holdings,”
recent federal
this
Court said
Cooke, supra, that we were forced to “decide whether the automo
exception requires
bile
finding
exigent
circumstances under
666,
Jersey
the New
Constitution.”
ly
exigent
looked to
justify
circumstances to
warrantless automo
Colvin,
(citing
bile searches.” Id. at
A.2d
State v.
428, 429,
(1991);
Esteves,
N.J.
Alston, supra,
police pursuit
speeding
involved
of a
vehicle
during
occupants
which the officers
noticed
the vehicle’s
were
acting furtively
apparent attempt
in an
something.
to conceal
stopped, police
N.J. at
440 A.2d
requested
1311. Once
occupant opened
glove
credentials.
Ibid.
one
compart-
When
credentials,
shotgun ammu
police observed
ment to retrieve those
to exit the
occupants were instructed
Ibid. The vehicle’s
nition.
frisked,
weapons were found on them.
but no
vehicle and were
However,
bag protruding from underneath
police observed a
Ibid.
seat, concealing
the detective deter
what
passenger
the front
1311. After the
shotgun.
Id. at
440 A.2d
to be a
mined
*39
shotgun and ammunition
based on the
suspects were arrested
found,
weapons.
yielded two additional
already
a further search
search,
217,
upheld the extended
(emphasis
citation
1311).
In
decided the
police
upheld
search of a vehicle at a
station. 87
the warrantless
570-71,
case,
investigat
at
436 A.2d96. In that
officers were
N.J.
robbery”
provided with
ing “freshly-committed
armed
and were
operated by the
description
of an automobile believed to be
robbery.
at
A.2d 96.
perpetrators of that
See id.
Offi
matching
given description,
located a vehicle
the
conducted
cers
check,
proceed
ear
brief search and credentials
and allowed the
However,
564-65,
way.
supervisor
A.2d 96.
at
on its
Id. at
direction,
now-unoccupied
in a
officers re-located the
vehicle
hous
ing project parking lot. Id. at
was discovered at that early horn- was dim best. In view of the “[a] return to the search at ear, careful was possibility suspects’ point officers____” safe for the impractical perhaps (alteration (citations omitted).] [Id. original) A.2d 96 emphasized ongoing investigation Court also nature nearby robbery, of the heightened armed which the level of exigency, noting urgent, that it created “an immediate need for police to ascertain whether the car contained evidence of the *40 robbery, suspects opportunity armed the before had an to leave destroy dispose 570, the area or to or of other evidence.” Id. at (citation omitted). 436A.2d 96 Cooke, supra, quoted
In
passage
Court
in full the
above
Martin,
quote
that
preceding
following: “Finding
with the
circumstances,
exigent
upheld
we
search in
warrantless
Mar
added).
669,
(emphasis
tin.” 163 N.J. at
The Cooke
“
”
highlighted
‘urgent,
also
Court
immediate need’
identified
Ibid,
Martin,
by the
(quoting
supra,
Martin Court.
In
the defendant
that the warrant-
contended
police
search of
at
headquarters, following
less
his automobile
his
316,
robbery,
illegal.
arrest
armed
was
evidence
bit,”
that “it was
key
quite
car and
it
duplicate
to the
drove
317,
at
A.2d 146.
a warrant.”
Id.
301
practicable
to secure
Court,
LaPorte]
According
[in
“the circumstances
to the Cooke
police
procure a
warrant
impracticable
it
for the
search
made
Cooke,
at
necessary.”
supra, 163 N.J.
action was
and immediate
316,
LaPorte,
(citing
supra,
Porte —the unanimous Cooke Court
presented exigency:
with either
tures that
reasons associated
safety
Id.
prevention of
or destruction of evidence.
loss
668, 669, 670,
highlight
at
served
enforcement____
guarantees against the need for effective law
[T]he
which,
when combined with
factor,
lessened
one
expectation
privacy
justify
exigency
[a]
of the situation,
existence
cause and
overall
may
warrantless search.
added) (citations omitted).]
(emphasis
[7d
670, 751A.2d 92
Then,
Pena-Flores,
long-
supra,
our
“reaffirm[ed]
this Court
standing precedent
permits
without a
an automobile search
N.J.
Colvin,
Included
that discussion was
587 A.2d
supra,
majority
characterizing
Colvin
it as
decision
diminishes
"primarily
exigent circumstances,”
even while
based on
ante at
A.3d at
pure
acknowledging that the Colvin Court "introduced the issue as one that 'concerns
”
(quoting
at 861
the automobile
ante
A.3d
exception,'
scope
1278) (internal
Colvin,
marks
search of an automobile (2) probable cause stop unexpected; the have the is of a or evidence that the vehicle contains contraband believe (3) crime; it exist which exigent under and circumstances 28, 965 A Id. at .2d impracticable to obtain a warrant.” omitted). (citations examples list of of provided The then Court may assessing exigent pertinent when considerations that be at A.2d 114. circumstances. Id. sup soundly fully and and Cooke are reasoned
Penar-Flores
reasoning
carefully
factual
Their
tracks
the
ported decisions.
legal
holdings
precedent.
for the
earlier
reasoning
bases and
of
pronounce
principle,
them unsound in
ante at
majority
For the
only
pronouncement
126 A.3d at
is unfair. That
reflects
particular,
I
majority’s
cоntrary
view of earlier law.
own
majority’s
preeminent
of
as the
word
note the
canonization Alston
Jersey.
majority
exception in
The
has
on the automobile
New
conveniently
single-sentence
Alston to a
standard
distilled
(and
ignores
acknowledgment
under
Alston’s own
Pena-Fiares’s
circumstances,
presence
indepen
scoring)
exigency
of
in the
spontaneity
dent
and unforeseen nature
the roadside
persuasive
dissent was not
on this
encounter. The Pena-Flores
majority’s
point.
repetition
opinion
it.
Its
does
enhance
Indeed,
majority
squarely
does not deal
with Pena-Flores
either, miseharacterizing
having
it as
an unworkable
established
414-15, 444,
test,
ante
126 A. 3d
multi-factor
notwithstanding
immediate and solid
the Pena-Flores Court’s
rejection
it first
as a
of that same assertion when
was advanced
Pena-Flores,
complaint,
N.J. at 29 n.
dissenter’s
see
others,
point,
require separate
III. prac- State contends that Pena-Flores is “unworkable in first, principal pilot tice” for two that post-Pena-Flores reasons: program exposed practical has telephonic difficulties with roadside warrants; second, search produced that Penar-Flores has *43 negative consequences” increasing “unintended of consent-based expanding however, reality, searches and discretion. In practical so-called evidence of the obtaining difficulties with road- telephonic single pilot side warrants from is derived six-month program years ago that ended three and whose results are arguably promising, Further, at and worst inconclusive. arguments regarding State’s supposedly negative unintended and consequences comprised of Pena-Flores are of speculation and leaps logic, by and are not borne out the State’s own data. In sum, demonstrating heavy the State falls far of short its burden practice that Pena-Flores is unworkable and that stare decisis yield. must
A. Pena-Flores, recognized Court a need for “an speedy telephonic procedure efficient and electronic and warrant scene[,] that will be [police] available to on the ... obviate the need for exigency difficult ... our guarantee and assessments^] protections requirement citizens the that the warrant affords —an judicial of evaluation cause a neutral officer.” 198 end, at N.J. 965 A.2d To 114. the Pena-Flores Court ordered the of practical creation a task force “to address the obtaining telephonic issues involved in and electronic warrants.” Id. at 965 A.2d The ... “study 114. task force was to telephonic and procedures practical electronic warrant make suggestions technology part ensure that of becomes vibrant process,” including procedures our uniform “recommendations for forms), (including equipment, training, along with evalua 35-36, underway.” tion of the scheme once it is Id. at 965 A.2d resulting Supreme Special 114. The Court Committee on Tele- Committee) was (Special phonic Electronic Search Warrants report. January in a findings its culminated formed and Telephonic & Special Supreme Court Committee Report of (Jan. 2010) Special [hereinafter Electronic Search Warrants http://www.judiciary.state.nj.us/ Report], available Committee Report made notices/2010/nl00520b.pdf. Special Committee telephonic respect implementing recommendations detailed Jersey more than goal and set a “no program in New warrant [thirty] minutes, minutes” for [forty-five] goal with an ideal telephonic process. Id. 19. completing the warrant viability Special Committee’s recommenda To test the telephonic tions, potential as as the volume of warrant well a six- the Administrative Office of Courts launched requests, Burlington pilot program in the Vici telephonic month warrant September 6, through ran March nage, which Jersey, Burlington Vicinage, Telephonic Superior of New Court (2012) (Penar-Flores) Program Pilot Search Warrants *44 argues The of Program]. Pilot that the results [hereinafter State promotion of pilot program demonstrate that Pena-Flores’s that practice. in telephonic and warrants is unworkable electronic average points the to fact that the amount Specifically, the during pilot telephonic it to warrant of time took obtain a minutes, fifty-nine program Special which Com was exceeds the (Citing Report’s goal forty-five a maximum of minutes. mittee of 6). of those average, thirty-two On Program, Pilot a police it for officer connect with minutes were time took a by county phone, process was judge on the a that facilitated prosecutor’s dispatch system. office via a centrаl communications in Focusing length on that of time Program, supra, Pilot pilot program’s failure to particular, the State asserts that the components human of target its is attributable to “the meet time system,” “judges fact in telephonic especially the any warrant they representatives ... are not like customer service this State prosecutors.” standing by to take calls from are not 24/7 Although fifty-nine average minute time to obtain a warrant Special target exceeded the by Committee’s outer-limit fourteen minutes, fact inevitably does not lead to the conclusion that a telephonic program warrant Jersey impracticable. New The Burlington Vicinage pilot program just pilot was program, that: goal one of which was to test the initial recommendations.of the Special Report. Committee It by was test which the viability telephonic of Jersey decidedly warrants in New should (“If pass Special or fail. See Report, supra, Committee at iv requests telephonic for number search warrants exceeds the ability of emergent duty them, system current to handle system implemented quickly another should be possible.”). as as By analysis, precise the State’s approach because the taken three years ago in pilot program a six-month target exceeded its time minutes, telephonic fourteen impracticable.4 warrants are That thinking ignores line of the fact that components “the human any telephonic static, system” warrant are not but rather a practices procedures function beings design that human implement, they as energy put doing well as the will and into so. viewed,
Properly
pilot program
and its
are a
results
mere
jumping
point
building
off
telephonic
a workable
or electronic
system,
warrant
or at
trying
least
so.
earnest
do
The State
attempted
improve
could
upon
have
pilot program’s
ap-
proach
concluded,
years
but,
the three
since it
significantly, it
points to no
having
presents
evidence of
done so. The State also
no
improvement
average
evidence that
on the
time to obtain a
4 majority
point
noting
average
Troop
makes a
that the
time for
C of the
procure
telephonic
State Police to
warrant was between 1.5 and two hours.
*45
However,
average only
Ante at
telephonic warrant was it for adjust program to make more convenient way pilot no to ongoing contrary, it seem that To the would parties all involved. efficiency and technology more developments in make advances likely. more functioning to already systems Jersey has
The fact that New temporary electronically apply for and obtain telephonieally and (TROs) strong settings is evidence restraining in several orders is a can work where there telephonic or electronic warrants out, example, points the ACLU to make them work. For as will implemented have an electronic judiciary law enforcement and violence, protect victims domestic filing system for TROs form, police to fill out an electronic teleconference which “allows approved judge, print out the TRO moments.” with the 1, 17, Report Jersey available New Courts Annual http://www.judiciary.state.nj.us/pressrel/ARNJCourts08.pdf; 5:7A(b) may be (providing that domestic violence TRO see also R. testimony judge ... “upon oral communicated to issued sworn communication”). by telephone, radio or other means of electronic weekends, holidays Notably, times when the court “[o]n other closed,” judges be Family municipal Part court “shall emergency assigned accept complaints [TROs].” and issue ... 2C:25-28(a). Similarly, may judge issue an arrest “[a] N.J.S.A through testimony communicated tele- warrant on sworn oral R. phone, means of electronic communication.” radio or other 3:2-3(b). may Restraining certain criminal offenders orders through telephonic electronic communica- also be issued such 2C:35-5.7(a). tion. N.J.SA. telephonic implemented
That have and electronic other states possible programs that such a feat is warrant is further evidence — v. McNeely, will to do See Missouri U.S. where the so exists. occurring; during improvement two the ACLU was Indeed asserts ended, technically pilot program was but for which data months after the collected, average telephonic time to obtain warrant had decreased forty-three minutes. *46 -,-, 1552,1562,185 (2013) (“Well 133 S.Ct. L.Ed.2d majority police a prosecutors over States allow officers to means, apply remotely through search warrants various includ- ing telephonic communication, or radio electronic communication e-mail, conferencing.”). Utah, such as and video In with the system, “police introduction of an process “e-warrant” officers can a search warrant to 15 begins five minutes. The officer by texting request directly judge the search warrant to the on call online, who then reviews search electronically warrant signs warrant, and emails it back to the officer to serve.” Judiciary, Report (2014), Utah Annual the Community available at http://www.utcourts.gov/annualreporV2014-Courts Annuahpdf; Bergreen, Judges, Cops see also Jason Dote on Quicker (Dec. System, Warrant Salt Lake Trib. 11:00 AM), http://archive.sltrib.com/article.php?id= 11309849&itype= NGPSID. Missouri,
In 2004 and 2010 to that amendments state’s “search warrant statute applications authoriz[e] search warrant to be made signatures!],] electronic means and with per- electronic mitting] Morley Swingle e-mail search warrants.” H. & P. Lane Thomasson, Upgrading Beam Up: Me Search Warrants with (2013). Technology, 69 J. Mo. B. As of June thirteen percent of prosecutors’ Missouri offices had obtained search war- e-mail, (4.3 percent) process rants via and five more offices a “had begin place” doing the same. Ibid. counties Missouri have incorporated process “electronic means” into the warrant in vari- ways. County, Missouri, ous and creative Ibid. Christian a prosecutor judge sign using use iPads e-mailed warrants “a signature application.” Henry County, 99-cent “In Ibid. process streamlined been has established” wherein an officer can application e-mail a prosecutor, warrant and affidavit to a who can sign signature with application judge. it it and forward to a Id. judge sign using application 20. The then can it and e-mail officer, patrol printer. it back to the equipped whose car with Finally, County Ibid. plan Skype as Platte had a “to use process, prosecu- with its judge, electronic search warrant so the by video can each other enforcement officer see tor and law Ibid, (foot- being warrants are obtained.” conferencing while the omitted). note *47 efforts, successes, well this in other states —as as and
Those restraining telephonic and of electronic implementation State’s aof that the results arrest warrants —demonstrate orders and pilot program using telephonic warrants cannot single six-month impracticability of a of the fairly be as conclusive evidence viewed Jersey. in New program warrant telephonic or electronic search given pilot program place took particularly is so that the That then, the and Technology already has evolved since 2011-2012. were, are, many of indicate that there efforts other states warrant, including a try quickly procuring to for methods more devices, e-mail, of iPads and other mobile electronic the use issue, every Technology cannot solve but signature applications. consistent, technologi- maximizing commitment to both concerted creativity A go long way. little human can a cal and resources challenges during the resolving to encountered and dedication may gone way. But the pilot program long indeed have a State’s seeming telephonic make warrants a lack of resolve to success prove impracticability. their As ACLU cannot and does not notes, develop telephonic a or electronic aptly the will to workable 1, Paragraph 7 of program must be derived from Article warrant Constitution, governmen- Jersey and not from individual the New tal actors.6 argument are to its that warrants telephonic The State adds one more point design, According program State, its unworkable. to the pilot "by very emerge as a warrants are not to viable replacement reveals why likely telephonic "[a]ll State contends that of the automobile The participants exception.” program would their in the understood that officers continue post- pilot requesting motorists to consent a search”
Pena-Flores of prior practice trying Further, that the State’s brief asserts to obtain warrant. telephonic recognized of that the number "participants telephonic-warrant applications judicial might ... resources unless most cases overwhelm prosecutorial [wejre Thus, the consent-to-search doctrine.” accord- screened out means of by ing program searches, State, to the the increase in consent attributable pilot applying warrant, for a to ask for motorists' consent before decision participants’
B. Seemingly recognizing pilot program that results of the do prove telephonic impracticable warrants are burden —a State must bear to launch frontal attack precedent— ground the State turns to an alternative on which to conclude that Pena-Flores It unworkable. asserts that Penar-Flores has produced negative consequence” increasing “unintended proof cоnsent-based searches of automobiles. As that consent- Pena-Flores, based have searches increased as a result points study to a conducted Office of Law Enforce- (OLEPS) ment Professional Standards on the effects Penar- Standards, Flores. Office of Law Enforcement Professional The (Oct. Municipal Departments Pena-Flores on Police Effects of 2012) study], [hereinafter 2012 http://www.nj. OLEPS available at gov/oag/oleps/pdfs/OLEPS-Report-Effects-ofPena-Flores-on- Mun-PDs-10.12.pdf. study data collected from motor vehicle stops from sampling municipal police departments throughout *48 approximately the state —103 of the Jersey 550 New municipal police departments as from during well the State Police —as (the April of from year February month before the decision) Pena-Flores through 2012. Id. at 6.
The 2012 study OLEPS reveals that consent-based automobile searches increased in municipal departments report- a ninety-six April ed in April 2008 to 271 in while overall 9,13. stops relatively number of unchanged. remained Id. at For Police, the State consent April searches increased from in nineteen ninety-five 2009, just April 2008 before Pena-Flores in to a few months after the decision. Ibid. Pena-Flores That number steadi- demonstrates that warrants are There telephonic unfeasible. is an undeniable argument. to that If the number of circularity warrant telephonic requests goal program have would overwhelmed the one was to system, pilot demonstrating data However, obtain that possibility. participants' preconceived (and resulting notion that warrants were unworkable decision to telephonic search) asking on motorists for consent to not does that such warrants rely prove program are fact It in unworkable. a had proves only participants precon- program belief ceived that a warrant was telephonic impracticable. Ibid. The April in 2011. 229 consent searches
ly increased to in consent-based searches highlights those increases negative consequence of Pena-Flores. them as a characterizes State, in consent searches is According to the the increase may asking for consent search be negative effect because ... strong and obvious as to probable cause is “so coercive when consent,” when motorists feel undermine the voluntariness they they subjected unless prolonged be detention will consent. undoubtedly para-
Although the voluntariness of consent Court, mount, currently the State’s on the record before based First, up. argument this front does not hold OLEPS on relatively “a study consent-based searches as itself characterizes occurrence,” despite the numerical increase consent rare Study, departments supra, at 13. “Most searches. 2012 OLEPS for searches] consent the months selected [of had handful fact, local review.” Ibid. “conversations with law enforcement requests especially [we]re officers” indicated that “consent common,” Specifical- numbers reinforce.” Id. a trend “the study ly, the 2012 found that OLEPS [g]iven average in the there were that there were 103 only departments sample, granted for 1.30 for April 1.07 consent searches per department April and 2.85 for 2012. The total number 1.85 for 2.37 for April April April granted of the consent searches less than 1% number motor represents great then, do not occur vehicle Consent with reported. requests frequency stops Police. or the State departments municipal added).] (emphasis {Ibid, study Importantly, follow-up in 2013 reiterat- OLEPS conducted findings apparent those increase in consent ed and attributed mostly changes reporting: to mere searches from *49 granted of to search does increase almost by While number consent requests attributed, to 2012 to this increase cannot be April stops April is at Instead, to, this increase more least likely increased use consent requests. reporting As a than the true number events. result be affected rather part, their records of motor of the 2012 data request, many improved departments while there is a Thus, overall, vehicle to facilitate such data stops, requests. large granted small, searches, in the number consent but increase steady, true W1S, increase is not a likely activity. reflection of [Office of Law Enforcement Standards, Professional Second Report: Effects of (Dec. 2013) added), (emphasis Pena-Flores Police Municipal Departments http:/Avww.nj.gov/lps/oleps/pdfs/OLEPS-Report-Bffects-of-Pena- available Flores-on-Mun-PDs-12.13.pdf.]
Second, the State does not demonstrate that the increase in
actually
negative consequence
consent-based searches is
Penar-Flores. Roadside consent searches of automobiles do not
present a
when
constitutional dilemma
there is
“reasonable
suspicion
articulable
to
passen
believe that
errant motorist or
in,
ger
in,
engaged
engage
has
or is
activity,”
about to
criminal
(2002),
Carty,
State v.
170 N.J.
Specifically, posit “may” the State’s briefs that a defendant challenge a consent-based search is strong, when cause “may” option a defendant contend genuine that “there was no consent,” “may” argue to refuse and that a defendant consent being period was invalid on fear of prolonged based detained for a However, points of time. to no instances which arguments, defendants have made such and it no case cites where post-Peraor-Fiores consent search has been invalidated on such grounds. Nevertheless, majority grabs the Court’s hold of that *50 proven has
argument support its State to conclusion unworkability. speculative again majority on the
The
focuses
—asser
State’s —
prospect
to
pressure
a
would feel
consent at the
tion that motorist
time.
at 443-
being
an
amount of
Ante
of
for
inordinate
detained
However,
not clear
current
it is
that the
Although that detention on the side of road is, is, debatably for an hour or at least more intrusive than vehicle, why search one’s one wonders individual motorists not be should allowed make that determination themselves. *51 response potentiality The rational to the placing of in a motorists to properly coercive situation is train officers and to reduce pressure eliminate by developing situational to consent functional and efficient and telephonic procedures electronic warrant so that may comfortably motorists choose for whether to themselves insist on the approved by constitutional default —a warrant a neutral magistrate right. to whether waive that —or
Finally, justifications a few words the last two asserted record this to overturn law on settled warrantless roadside searches of automobiles. The asserts that Pencu-Flores has (or have) perhaps increasing had will the effect of “de-policing” expanding police arguments discretion. The State’s on those points equally are speculative arguments if not its more than about the effects consent-based searches. first, to the impractical
As the State contends that when is to it car, get а warrant to search will release motorists even cars, though probable there is resulting cause to search their Although “de-polieing.” Study the 2012 OLEPS states that consent, “many departments indicated that in the face of a denied warrant,” apply Study it was rare to for a posits search that apply de-polieing the failure to for a warrant could have indicated or lack of Study, cause. 2012 OLEPS The study only speculation de-policing motivating contains that was the force behind an to apply officer’s decision not for a warrant when spend motorist denied consent: than “Rather the several hours apply vehicle, for a may search warrant and tow a officers have willing been to allow motorists to leave without investiga- further Ibid, added). (emphasis any tion.” In the absence data or statistics that indicating “de-policing” occurring, is in fact such speculation raw is not a basis on which alter motorists’ constitu- rights. tional second, it that noting point by
As to bears the last made support by State in of its “forcing claims—that officers to decide warrant, and effort to obtain worth the time whether it is patrol ambit of a unwittingly enlarged has rule Pena-Flores similarly basis in fact. without discretion” —is officer’s enforcement regard, merely latching onto Perhaps, the State in this examples of exi dissent’s mischaracterization Pena-Flores Pena-Flores, hard- and in as a gency, helpfully set out in Cooke apply. See Pena- that is difficult and-fast multi-factor test 26-29, 29, Flores, (noting 965 A.2d supra, 198 N.J. at possible as as the scenarios “[Ilegitímate considerations are varied Cooke, supra, 168 at 668- surrounding stop”); N.J. an automobile called out in Pena-Flores was A.2d 92. dissent recasting majority misleading for its inaccurate and Pena-Flores Pena-Flores, supra, majority 198 N.J. opinion what said. contrary (explaining to dissent’s at 29 n. characterization, a new ‘multi-factor majority did “establish ” *52 test,’ detailed, example way not “merely by of but but rather limitation, recognized have prior that our eases the various factors then, exigency analysis”). Sadly, the dissent as relevant to an now, persist in majority the the that mischaracteriza State and tion. put on the back bull’s-eye
The that the Pena-Flores dissenters paid proof of the finally of that has off—not because decision record, in this but rather from re- the State has mustered prior scrutiny the of case law and lack of of characterization support practicality argument. in of alleged its State’s evidence view, my analysis legal of and factual bases majority’s In the the woefully inadequate. are overturning Pena-Flores Cooke justify overturning its burden to our The State has carried governing law warrantless automobile searches state constitutional analysis majority persuasive in that the State is the its neither has so. done
IV.
essence,
majority’s
represents,
to
conclusion
a retreat
of an
standard for warrantless searches
automobile
federal
expressly rejected
Ironically,
majori-
the Court Cooke.
ty’s step towards the federal standard comes at a time when
jurisprudence
deviating away
federal
any per
categories
is
se
—
See, e.g.,
exigency.
supra,
-,
of assumed
McNeely,
U.S.
696;
Gant,
S.Ct.
L.Ed.2d
v.
Arizona
556 U.S.
(2009).
1710,173
129 S.Ct.
L.Ed.2d
Gant, supra,
rejected
In
Supreme
United States
Court
Belton,
reading
broad
its
of
decision New York v.
453 U.S.
(1981),
101 S.Ct.
permit
constitute
justify
blood
of a drunk-
warrantless
draw
—
driving
at-,
suspect.
U.S.
S.Ct.
L.Ed.2d
so,
In doing
at 715.
noted
Court
categorical
Fourth
Amendment will not tolerate
of an
broad
adoption
overly
significant
that would dilute the
in a
warrant
context where
approach
requirement
Moreover,
interests are
stake.
privacy
case-by-case approach
hardly unique
jurisprudence.
judged
within our Fourth Amendment
Numerous
actions are
based on
fact-intensive,
circumstances
rather
than
totality
analyses
accord-
*53
ing
categorical
including
to
rules,
in situations
more
that are
likely
require police
judgments.
officers to make difficult split-second
[Id.
at-,
710.]
S.Ct.
185 L.Ed.2d
Importantly,
McNeely
adoption
Court noted that
restric-
tive, categorical approach
ignore technological changes
would
at-,
expedition
obtaining
warrants.
Id.
One can wonder progressive approach turn appropriate find it Court rights historically privacy and constitutional taken in this State join step. I cannot this backward of motorists. respectfully I dissent. For Justice RABNER and remandment —Chief affirmance PATTERSON, FERNANDEZ-VINA, ALBIN,
Justices SOLOMON —5. Judge
For CUFF dissent—Justice LaVECCHIA (temporarily assigned) —2.