Article by Daniel A. Levy, Esq.

Very recently, the New Jersey Supreme Court drastically changed the rules regarding police searches of vehicles. The bottom line is that police in New Jersey now do not need a warrant to search a car when police have probable cause to believe that it contains contraband or evidence of a crime and where circumstances giving rise to probable cause are unforeseeable and spontaneous.

Earlier, I wrote about the general rules about warrantless police searches of vehicles. Traditionally, under the Federal rules, police could always search a vehicle as long as there is probable cause to believe that the car contains evidence of a crime. This is what the Federal courts have declared is the amount of protection that the United States Constitution provides. However, each of the states have their own constitutions. And the various states are free to make their constitutions more protective of the rights of the people present in that state.

And this is exactly what New Jersey did, according to prior NJ court rulings. Previously, the rule has been that police in New Jersey need a warrant to search a vehicle, or knowing and voluntary consent to search. For police to conduct a valid search, they would either need to get a warrant by telephone, or they would use a special form that authorized the search, which clearly stated that the search was voluntary and the driver could stop the search at any time. Under the old rule, the warrantless search of an automobile is permissible where (1) the stop is unexpected, i.e., unforeseen and spontaneous; (2) the police have probable cause to believe that the vehicle contains evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. Exigency must be determined on a case-by-case basis. This standard was set in 2009 in the case of State v. Pena-Flores.

But recently, this all changed. In a 5-2 ruling in State v. Witt, the court found that the standard it set in the 2009 case State v. Pena-Flores is unworkable and has led to a situation where too many motorists who were stopped along the state’s roads were being asked by police to sign forms consenting to a search of their vehicles. In doing so, the court reverted back to the previous rule from 1981, which allows the warrantless search of a vehicle when police have probable cause to believe that it contains contraband or evidence of a crime and where circumstances giving rise to probable cause are unforeseeable and spontaneous.

In other words, if police pull you over and they have good reason to believe that evidence of a crime is in the vehicle (drugs, open liquor bottle, gun, etc.), then they can simply search your car without a judge issuing a warrant and without you agreeing to the search.

Personally, I think this is a big step back and I completely agree with Justice LaVecchia’s dissenting opinion. “This is not a proud day in the history of this court,” LaVecchia said in her dissenting opinion. “Through perseverance in seeking the reversal of a disliked decision with which the state made desultory, if any, efforts to comply, the attorney general has been rewarded on the basis of a wholly inadequate and unpersuasive record. Indeed, that reward is a direct result of the attorney general’s persistence leading to a majority now willing to effect this jurisprudential change.”

In other words, the state prosecutors hated the prior rule and essentially went on a mission to violate it and overturn it. They said that the telephonic warrant program was inadequate, but they themselves created that problem by failing to abide by their own obligations. And at least under the old rule a defendant could contest the search later by either challenging the warrant or challenging the consent by arguing that it was not given freely and voluntarily.

In any event, New Jersey drivers should now be extra careful about who and what they allow in their cars because police are now much more free to search vehicles.