State v. William L. Witt(074468)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. William L. Witt (A-9-14) (074468)

Argued April 14, 2014 -- Decided September 24, 2015

ALBIN, J., writing for a majority of the Court.

In this appeal, the Court addresses the constitutional standard governing an automobile search and
considers whether to continue to follow the standard set forth in State v. Pena-Flores, 198 N.J. 6 (2009).

Defendant William L. Witt was charged in an indictment with second-degree unlawful possession of a
firearm and second-degree possession of a weapon by a convicted person. The police initiated a stop of defendant’s
car because he did not dim his high beams when necessary, and a search of his vehicle uncovered the handgun.

Defendant moved to suppress the gun on the ground that the police conducted an unreasonable search in
violation of the New Jersey Constitution. Defendant’s sole argument was that the police did not have exigent
circumstances to justify a warrantless search of his car under Pena-Flores. At the suppression hearing, Officer
Racite testified that at approximately 2:00 a.m., while providing backup for a motor-vehicle stop, he observed a car
pass with its high beams on. The officer explained that a car must dim its high beams “as vehicles approach.” Thus,
Officer Racite stopped the vehicle, and requested backup. Defendant, the driver, appeared intoxicated and was
asked to exit his car. Defendant then failed field-sobriety and balance tests, and Officer Racite arrested him for
driving while intoxicated. Defendant was handcuffed and placed in the back of a patrol car. While Officer Racite
searched defendant’s vehicle for “intoxicants,” he found a handgun in the center console. With Pena-Flores as its
guide, the trial court found as follows: the officer had a right to stop defendant’s car based on an “unexpected”
occurrence and had probable cause to search for an open container of alcohol, but did not have “sufficient exigent
circumstances” to conduct a warrantless search. Accordingly, the court suppressed the handgun.

The Appellate Division granted the State’s motion for leave to appeal and affirmed the suppression of the
gun “because of the utter absence of any exigency to support the warrantless vehicle search that occurred,” and
“because there was no justification for this motor vehicle stop.” 435 N.J. Super. 608, 610-11 (App. Div. 2014). The
panel declined to address the State’s argument that the exigent-circumstances test in Pena-Flores “should be
replaced because it has proved to be unworkable and has led to unintended negative consequences,” explaining that,
as an intermediate appellate court, it had no authority to replace Pena-Flores with some other legal principles. The
panel also agreed with defendant’s argument, raised for the first time on appeal, that Officer Racite did not have a
reasonable and articulable suspicion to stop defendant because the relevant statute (N.J.S.A. 39:3-60) requires
drivers to dim their high beams only when approaching an oncoming vehicle within 500 feet.

The Court granted the State’s motion for leave to appeal. 219 N.J. 624 (2014).

HELD: The exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in
practice. Citing Article I, Paragraph 7 of New Jersey’s State Constitution, the Court returns to the standard
articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause:
The automobile exception authorizes the warrantless search of an automobile only when the police have probable
cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to
probable cause are unforeseeable and spontaneous.

1. Before addressing the parties’ arguments on the constitutional standard governing the search of defendant’s
vehicle, the Court disposes of his challenge to the lawfulness of the stop. Defendant did not challenge the validity of
the motor-vehicle stop before the trial court, but now claims that the filing of a motion to suppress under Rule 3:5-
7(a) required the State to justify every aspect of the warrantless search, including the initial stop. The Court rejects
defendant’s contention and concludes that the Appellate Division should have declined to entertain the belatedly
raised issue. The Court reverses the Appellate Division on this point and holds that the lawfulness of the stop was
not preserved for appellate review. (pp. 8-10)

2. Having addressed defendant’s challenge to the lawfulness of the stop, the Court turns to the constitutional
standard governing the search of defendant’s vehicle. The automobile exception to the warrant requirement -- as
defined by the United States Supreme Court in construing the Fourth Amendment -- authorizes a police officer to
conduct a warrantless search of a motor vehicle if it is “readily mobile” and the officer has “probable cause” to
believe that the vehicle contains contraband or evidence of an offense. Under federal law, probable cause alone
satisfies the automobile exception to the warrant requirement. The federal automobile exception does not require a
separate finding of exigency in addition to a finding of probable cause, as is the case in New Jersey. The
overwhelming majority of states have adopted the federal approach to the automobile exception and do not require
exigency beyond the inherent mobility of the vehicle. (pp. 13-21)

3. In State v. Alston, 88 N.J. 211 (1981), the Supreme Court of New Jersey upheld the constitutionality of the
search of the defendants’ car based on the United States Supreme Court’s then-articulated automobile exception to
the warrant requirement. In doing so, the Court stated that “the exigent circumstances that justify the invocation of
the automobile exception are the unforeseeability and spontaneity of the circumstances giving rise to probable cause,
and the inherent mobility of the automobile stopped on the highway.” Id. at 233. However, in State v. Cooke, 163
N.J. 657 (2000), the Court announced that, under Article I, Paragraph 7 of New Jersey’s State Constitution, the
warrantless search of a vehicle could only be justified based on exigent circumstances in addition to probable cause.
Pena-Flores reaffirmed the standard enunciated in Cooke, and declared that “the warrantless search of an automobile
in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the
vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is
impracticable to obtain a warrant.” 198 N.J. at 28. The Court further set forth a multi-factor test to guide police
officers in determining whether exigent circumstances excused the securing of a warrant, and encouraged the use of
telephonic and electronic warrants as a means to meet the constitutional challenges of roadway stops. (pp. 21-32)

4. In the wake of Pena-Flores, this Court created the Supreme Court Special Committee on Telephonic and
Electronic Search Warrants, which issued a report in January 2010. The Committee concluded that safety and police
resource concerns dictated that search-warrant applications be completed in no more than 45 minutes, with an ideal
goal of 30 minutes. The Committee further outlined six steps to be taken in securing a telephonic search warrant
when a police officer believes that there is probable cause to search. Thereafter, the Administrative Office of the
Courts conducted two pilot programs. The first lasted only two months and yielded little usable data. The second
ran in Burlington County from September 2011 to March 2012. During that period, the State Police and local law-
enforcement agencies filed 42 telephonic automobile search-warrant applications. The average request for an
automobile warrant took approximately 59 minutes, from the inception of the call to its completion. Separately, the
State Police reported to the Administrative Office of the Courts that Troop C applied for 16 telephonic search
warrants, with the process taking, on average, 1.5 to 2 hours. The State Police also reported that since Pena-Flores,
its state-wide consent to search requests rose from approximately 300 per year to over 2500 per year, and that its
patrol policy is to exhaust the consent search option prior to making a determination to seek a warrant, telephonic or
in-person. (pp. 32-35)

5. In State v. Shannon, 210 N.J. 225, 227 (2012), the Court declined the State’s request to revisit Pena-Flores,
finding that the motor-vehicle data submitted by the State was insufficient “to establish the ‘special justification’
needed to depart from precedent.” However, the Court invited the parties to amass and develop a more thorough,
statistical record relating to motor vehicle stops by the State Police and local authorities. Thereafter, the Office of
Law Enforcement Professional Standards published a report entitled “The Effects of Pena-Flores on Municipal
Police Departments.” The one firm conclusion reached by the report was that “after the Pena-Flores decision, there
was a noticeable increase in consent to search requests for both municipal departments and the State Police; even
with only a slight increase in the number of motor vehicle stops.” (pp. 36-38)

6. Resolution of the issue before the Court implicates the doctrine of stare decisis. Because stare decisis promotes
consistency, stability, and predictability in the development of legal principles and respect for judicial decisions, a
“special justification” is required to depart from precedent. That said, stare decisis is not an inflexible principle
depriving courts of the ability to correct their errors. Among the relevant considerations in determining whether to
depart from precedent are whether the prior decision is unsound in principle and unworkable in practice. The Court,

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therefore, turns to consider whether Pena-Flores is furthering the constitutional values that are protected by the New
Jersey Constitution and whether there is “special justification” for departing from it. (pp. 39-42)

7. The use of telephonic search warrants has not resolved the difficult problems arising from roadside searches, as
the Court expected when it decided Pena-Flores. Prolonged encounters on the shoulder of a crowded highway may
pose an unacceptable risk of serious bodily injury and death to both police officers and citizens. Moreover, the
seizure of the car and the motorist’s detention may be a greater intrusion on a person’s liberty interest than the
search is on a person’s privacy interest. Finally, the dramatic increase in the number of consent searches since Pena-
Flores is apparently an unintended consequence of that decision, reflecting the difficulty presented to police officers
by the Pena-Flores multi-factor exigent-circumstances standard. The Court is concerned about consent searches in
such great numbers, particularly in light of the historic abuse of such searches and the coercive effect of a search
request made to a motorist stopped on the side of a road. The Court, therefore, concludes that the current approach
to roadside searches premised on probable cause places significant burdens on law enforcement without any real
benefit to the public. (pp. 42-50)

8. Although the Court determines that the exigent-circumstances standard set forth in Cooke and Pena-Flores is
unsound in principle and unworkable in practice, it does not adopt the federal standard for automobile searches
because it is not fully consonant with the interests embodied in Article I, Paragraph 7 of the State Constitution. The
Court returns to the Alston standard, which states that the automobile exception authorizes the warrantless search of
an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence
of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous. The Court’s
decision limits the automobile exception to on-scene warrantless searches, unlike federal jurisprudence, which
allows a police officer to conduct a warrantless search at headquarters merely because the officer could have done so
on the side of the road. (pp. 50-53)

9. The Court’s decision is a new rule of law to be applied prospectively. Therefore, for purposes of this appeal,
Pena-Flores is the governing law. However, going forward, the exigent-circumstances test in Cooke and Pena-
Flores no longer applies, and the standard set forth in Alston for warrantless searches of automobiles based on
probable cause governs. (pp. 53-55)

The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.

JUSTICE LaVECCHIA, DISSENTING, expresses the view that the State has not shown a special
justification to merit departure from settled law, and, therefore, stare decisis should prevail. Justice LaVecchia
asserts that, contrary to the majority’s characterization, Cooke and Pena-Flores are not “unsound in principle,” and,
further, the State has failed to show that the current law is “unworkable in practice.”

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, AND SOLOMON
join in JUSTICE ALBIN’s opinion. JUSTICE LaVECCHIA filed a separate, dissenting opinion, in which
JUDGE CUFF (temporarily assigned) joins.

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 SUPREME COURT OF NEW JERSEY
A-9 September Term 2014
074468

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM L. WITT,

Defendant-Respondent.

Argued April 14, 2015 – Decided September 24, 2015

On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 435
N.J. Super. 608 (App. Div. 2014).

Ronald Susswein, Assistant Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).

Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).

Brooks H. Leonard argued the cause for
amicus curiae Association of Criminal
Defense Lawyers of New Jersey (Coughlin
Duffy, attorneys; Mr. Leonard and Michael J.
Sullivan, of counsel and on the brief).

Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Ronald K. Chen, Rutgers
Constitutional Rights Clinic Center for Law
& Justice and Edward L. Barocas, attorneys;
Mr. Shalom, Mr. Chen, Mr. Barocas, and
Jeanne M. LoCicero, of counsel and on the
brief).

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 Jeffrey Evan Gold argued the cause for
amicus curiae New Jersey State Bar
Association (Paris P. Eliades, President,
Gold & Associates, and Yonta Law,
attorneys; Mr. Gold and Mr. Eliades, of
counsel; Mr. Gold, Kimberly A. Yonta, and
Justin M. Moles, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

In this appeal, we are called on to determine whether the

constitutional standard governing an automobile search in State

v. Pena-Flores, 198 N.J. 6 (2009) is unsound in principle and

unworkable in practice.

In Pena-Flores, supra, 198 N.J. at 28, a deeply divided

Court reaffirmed its departure from the standard for automobile

searches set forth in State v. Alston, 88 N.J. 211, 233 (1981).

In Alston, we determined that a warrantless search of an

automobile was constitutionally permissible, provided that the

police had probable cause to search the vehicle and that the

police action was prompted by the “unforeseeability and

spontaneity of the circumstances giving rise to probable cause.”

Id. at 233, 235. The Alston standard was seemingly consistent

with the federal exception to the warrant requirement.

In State v. Cooke, 163 N.J. 657, 670 (2000), invoking our

State Constitution, the Court overthrew the Alston standard and

added a pure exigent-circumstances requirement to justify an

automobile search. Pena-Flores maintained the course charted by

2
Cooke. Pena-Flores also set forth a multi-factor test to guide

police officers in determining whether exigent circumstances

excused the securing of a warrant and encouraged the use of

telephonic warrants as a means of shortening roadway stops. The

Court expected that its exigent-circumstances test would provide

a reliable guide to law enforcement and that telephonic warrants

would present an efficient and speedy way of curbing prolonged

roadway stops. Those expectations have not come to pass.

Experience and common sense persuade us that the exigent-

circumstances test in Pena-Flores does not provide greater

liberty or security to New Jersey’s citizens and has placed on

law enforcement unrealistic and impracticable burdens. First,

the multi-factor exigency formula is too complex and difficult

for a reasonable police officer to apply to fast-moving and

evolving events that require prompt action. Thus, we cannot

expect predictable and uniform police or judicial decision-

making. Second, the securing of telephonic warrants results in

unacceptably prolonged roadway stops. During the warrant-

application process, the occupants of a vehicle and police

officers are stranded on the side of busy highways for an

extended period, increasing the risk of serious injury and even

death by passing traffic. If the car is impounded, then the

occupants’ detention will be extended for an even longer period

as a warrant is procured. Third, one of the unintended

3
consequences of Pena-Flores is the exponential increase in

police-induced consent automobile searches. The resort to

consent searches suggests that law enforcement does not consider

time-consuming telephonic warrants or the amorphous exigent-

circumstances standard to be a feasible answer to roadway

automobile searches. The heavy reliance on consent searches is

of great concern given the historical abuses associated with

such searches and the potential for future abuses.

Adherence to stare decisis serves a number of salutary

purposes, including promoting certainty and stability in our

law. However, stare decisis is not a command to continue on a

misguided course or to hold tight to a failed policy. We do not

overturn precedent lightly, and certainly not without good cause

or a special justification. Because we believe that good cause

and special justification are present here, we return to the

standard that governed automobile searches in Alston -- a

standard that is more in line with the jurisprudence of most

other jurisdictions, yet still protective of the right of

citizens to be free from unreasonable searches.

I.

A.

Defendant William L. Witt was charged in an indictment with

second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-

5(b), and second-degree possession of a weapon by a convicted

4
person, N.J.S.A. 2C:39-7(b). The police initiated a stop of

defendant’s car because he did not dim his high beams when

necessary. A search of defendant’s vehicle uncovered a handgun.

Defendant moved to suppress the gun on the ground that the

police conducted an unreasonable search in violation of the New

Jersey Constitution. Defendant’s sole argument in support of

his motion, presented both in a letter brief and oral argument

to the trial court, was that the police did not have exigent

circumstances to justify a warrantless search of his car under

Pena-Flores. Defendant did not challenge the validity of the

motor-vehicle stop.

At the suppression hearing, only one witness testified --

Officer Joseph Racite of the Carneys Point Township Police

Department. According to Officer Racite, at approximately 2:00

a.m. on December 19, 2012, while providing backup for a motor-

vehicle stop on Pennsville Auburn Road, he observed a car pass

with its high beams on. Officer Racite explained that a car

must dim its high beams “as vehicles approach.” Officer Racite

pursued and stopped the vehicle, and requested backup.

Defendant, the driver, appeared intoxicated and was asked to

exit his car. After defendant failed to properly perform field-

sobriety and balance tests, Officer Racite arrested him for

driving while intoxicated. Defendant was handcuffed and placed

in the back of a patrol car. While Racite searched defendant’s

5
vehicle for “intoxicants,” he found a handgun in the center

console.

With Pena-Flores as its guide, the trial court made the

following findings: the officer had a right to stop defendant’s

car based on an “unexpected” occurrence and had probable cause

to search for an open container of alcohol, but did not have

“sufficient exigent circumstances” to conduct a warrantless

search. Accordingly, the court suppressed the handgun.

The Appellate Division granted the State’s motion for leave

to appeal.

B.

The Appellate Division affirmed the trial court’s

suppression of the gun “because of the utter absence of any

exigency to support the warrantless vehicle search that

occurred, and because there was no justification for this motor

vehicle stop.” State v. Witt, 435 N.J. Super. 608, 610-11 (App.

Div. 2014). First, the panel declined to address the State’s

argument that the exigent-circumstances test in Pena-Flores

“should be replaced because it has proved to be unworkable and

has led to unintended negative consequences.” Id. at 612. The

panel explained that, as an intermediate appellate court, it had

“no authority to ‘replace’ Pena-Flores with some other legal

principles.” Ibid.

Second, in applying Pena-Flores, the panel determined that

6
the evidence at the suppression hearing did not “suggest[]

anything close to an exigency that would permit a motor vehicle

search without a warrant.” Id. at 613. It emphasized that the

stop occurred in the early morning when defendant was driving

alone; during the search, defendant was “handcuffed” and “seated

in the back of a police vehicle”; and the police had no reason

to believe that the object of the search -- “open containers of

alcohol” -- would not still be in the car “once a warrant was

obtained.” Ibid.

Third, the panel agreed with defendant’s argument, raised

for the first time on appeal, that Officer Racite did not have a

“reasonable and articulable suspicion” to stop defendant for

violating N.J.S.A. 39:3-60 because the statute requires drivers

to dim their high beams only when “‘approach[ing] an oncoming

vehicle’” within five hundred feet. Id. at 614-16 (quoting

N.J.S.A. 39:3-60). The panel reasoned that the officer’s

vehicle was not an “oncoming vehicle” because it was parked when

defendant drove by with active high beams. Id. at 615-16.

Because the officer’s vehicle was not “in operation and in the

lane of traffic opposite to” defendant’s car, in the panel’s

view, Officer Racite had no right to stop him. Ibid.

C.

We granted the State’s motion for leave to appeal. State

v. Witt, 219 N.J. 624 (2014). We also granted the motions of

7
the Association of Criminal Defense Lawyers of New Jersey, the

New Jersey State Bar Association, and the American Civil

Liberties Union of New Jersey to participate as amici curiae.

II.

Before addressing the parties’ arguments on the

constitutional standard governing the search of defendant’s

vehicle, we dispose of his challenge to the lawfulness of the

stop, which was raised for the first time before the Appellate

Division. Defendant did not challenge the validity of the

motor-vehicle stop under N.J.S.A. 39:3-60 in either his brief or

argument before the trial court. Defendant now claims that the

mere filing of a motion to suppress under Rule 3:5-7(a) required

the State “to justify every aspect of the warrantless search,”

including the initial stop, which he did not challenge at the

suppression hearing.

We reject defendant’s contention that the State must

disprove issues not raised by the defense at a suppression

hearing. Defendant’s approach would compel the State to cover

areas not in dispute from fear that an abbreviated record will

leave it vulnerable if the defense raises issues for the first

time on appeal. Requiring the State to disprove shadow issues

will needlessly lengthen suppression hearings and result in an

enormous waste of judicial resources.

Rule 3:5-7(a) provides that “a person claiming to be

8
aggrieved by an unlawful search and seizure . . . may apply . .

. to suppress the evidence.” Defendant never “claim[ed] to be

aggrieved by an unlawful” stop. He only challenged the search

of his car. A prosecutor should not have to possess telepathic

powers to understand what is at issue in a suppression hearing.

N.J.S.A. 39:3-60, in pertinent part, prohibits a driver

from using his high beams when he “approaches an oncoming

vehicle within five hundred feet.” Based on a violation of that

statute, Officer Racite stopped defendant’s car. Because the

defense did not question the validity of the stop at the

suppression hearing, the record is barren of facts that would

shed light on this issue. For example, the record only

discloses that Officer Racite was on the side of the road

assisting as backup on a motor-vehicle stop when defendant

approached using his high beams. We do not know on which side

of the road Officer Racite’s patrol car was positioned, whether

Racite was in his car facing defendant’s vehicle, and whether

Racite’s car was operational. Importantly, no testimony was

elicited whether any other cars were travelling in the opposite

lane from defendant at the time because the issue was of no

moment.

Generally, “the points of divergence developed in

proceedings before a trial court define the metes and bounds of

appellate review.” State v. Robinson, 200 N.J. 1, 19 (2009).

9
Parties must make known their positions at the suppression

hearing so that the trial court can rule on the issues before

it. See ibid. For sound jurisprudential reasons, with few

exceptions, “‘our appellate courts will decline to consider

questions or issues not properly presented to the trial court

when an opportunity for such a presentation is available.’” Id.

at 20 (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973)).

We conclude that it would be unfair, and contrary to our

established rules, to decide the lawfulness of the stop when the

State was deprived of the opportunity to establish a record that

might have resolved the issue through a few questions to Officer

Racite. The trial court, moreover, was never called on to rule

on the lawfulness of the stop. Under the circumstances, the

Appellate Division should have declined to entertain the

belatedly raised issue. We therefore reverse the Appellate

Division and hold that the lawfulness of the stop was not

preserved for appellate review.

We now turn to the parties’ arguments, which address

whether this Court should continue to follow the standard for

automobile searches set forth in Pena-Flores.

III.

A.

The State urges this Court to abandon the exigent-

10
circumstances standard for automobile searches followed in Pena-

Flores and to return to the more traditional automobile

exception to the warrant requirement articulated in Alston,

which allows for the search of a vehicle based on probable cause

arising from unforeseeable and spontaneous circumstances. The

State argues that the Alston test should be reinstated primarily

because (1) the standard governing exigent circumstances under

Pena-Flores is too subjective and therefore too susceptible to

second-guessing in the judicial process; (2) the standard does

not lead to uniform results in the court system; (3) the

telephonic-warrant process extends the length of time of a

roadway stop, endangering the police and vehicles’ occupants

from passing traffic; (4) law enforcement has turned not to

telephonic warrants -- as the Court expected -- but rather to

consent searches, which have a checkered history in New Jersey;

and (5) impounding a car to secure a warrant is a greater

constitutional intrusion than a prompt search based on probable

cause. In short, the State argues that Pena-Flores should be

overturned.

B.

Defendant asserts that, given the doctrine of stare

decisis, the State has failed to prove any “special

justification” for overturning a well-grounded and well-reasoned

recent precedent. Defendant submits that this Court should

11
stand by Pena-Flores because: (1) the statistical evidence

presented by the State suggests that “the system is working

well” and will get even better “as the State . . . trains all of

its officers on the correct law”; (2) New Jersey’s jurisprudence

expresses a preference for search warrants, and our “State

Constitution provides greater protection than does its federal

counterpart”; (3) the exigency rule is simple in concept and

application -- “get a warrant, unless circumstances are such

that to do so would risk destruction of evidence, or the safety

of officers or others”; (4) consent searches do not present a

problem provided police officers only make the request when they

possess reasonable suspicion; and (5) the exigency “analysis is

not an excessive burden to a police officer,” and the Pena-

Flores test for exigency is not “substantively different than

the test” discussed in Alston. Simply stated, the defense

claims that the State has given no reason to depart from Pena-

Flores.

C.

Echoing many of the arguments made by defendant, amici, the

American Civil Liberties Union, Association of Criminal Defense

Lawyers, and State Bar Association, individually and

collectively, call on the Court to keep faith with Pena-Flores.

They claim that the State has failed to establish statistically

or otherwise any special circumstance for overthrowing the

12
present exigent-circumstance requirement when a warrant to

search a car is not procured. They note that advances in

technology will allow more timely access to warrants. In

addition, the State Bar rejects the notion that “consent

searches may be inherently coercive” and finds that the increase

in the number of such searches represents a “positive impact” of

the Pena-Flores decision. The American Civil Liberties Union

acknowledges that consent searches may be coercive but submits

that “the potential abuse of consent searches by law

enforcement” should not be the basis for excusing police

officers from complying with the dictates of Pena-Flores and for

allowing warrantless searches without either consent or

exigency.

IV.

A.

A critical understanding of Pena-Flores requires that we

review the jurisprudential rationales for the automobile-

exception to the warrant requirement. Our starting point is the

text of our State and Federal Constitutions.

In nearly identical language, Article I, Paragraph 7 of the

New Jersey Constitution and the Fourth Amendment of the United

States Constitution guarantee that “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated” and

13
that warrants shall not issue in the absence of “probable

cause.” N.J. Const. art. I, ¶ 7; U.S. Const. amend. IV. Our

jurisprudence under both constitutional provisions expresses a

preference that police officers secure a warrant before they

execute a search. State v. Frankel, 179 N.J. 586, 597-98, cert.

denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004).

Warrantless searches are permissible only if “justified by one

of the ‘few specifically established and well-delineated

exceptions’ to the warrant requirement.” Id. at 598 (quoting

Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57

L. Ed. 2d 290, 298-99 (1978)). One such exception is the

automobile exception to the warrant requirement. Pennsylvania

v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed.

2d 1031, 1036 (1996); see also Alston, supra, 88 N.J. at 230-31

(citing Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975,

1981, 26 L. Ed. 2d 419, 428 (1970)).

The automobile exception to the warrant requirement -- as

defined by the United States Supreme Court in construing the

Fourth Amendment -- authorizes a police officer to conduct a

warrantless search of a motor vehicle if it is “readily mobile”

and the officer has “probable cause” to believe that the vehicle

contains contraband or evidence of an offense. Labron, supra,

518 U.S. at 940, 116 S. Ct. at 2487, 135 L. Ed. 2d at 1036.

Under federal law, probable cause to search a vehicle “alone

14
satisfies the automobile exception to the Fourth Amendment’s

warrant requirement.” Maryland v. Dyson, 527 U.S. 465, 467, 119

S. Ct. 2013, 2014, 144 L. Ed. 2d 442, 445 (1999). The federal

automobile exception does not require “a separate finding of

exigency in addition to a finding of probable cause,” ibid., as

is the case in New Jersey, Pena-Flores, supra, 198 N.J. at 28.

The United States Supreme Court has identified three

rationales for the current automobile exception: (1) the

inherent mobility of the vehicle, Carroll v. United States, 267

U.S. 132, 153, 45 S. Ct. 280, 285, 69 L. Ed. 543, 551 (1925);

(2) the lesser expectation of privacy in an automobile compared

to a home, California v. Carney, 471 U.S. 386, 391-93, 105 S.

Ct. 2066, 2069-70, 85 L. Ed. 2d 406, 413-14 (1985); and (3) the

recognition that a Fourth Amendment intrusion occasioned by a

prompt search based on probable cause is not necessarily greater

than a prolonged detention of the vehicle and its occupants

while the police secure a warrant, Chambers, supra, 399 U.S. at

51-52, 90 S. Ct. at 1981, 26 L. Ed. 2d at 428.

The first rationale is clearly expressed in Carroll, supra,

the case in which the United States Supreme Court first

recognized the automobile exception. 267 U.S. 132, 45 S. Ct.

280, 69 L. Ed. 543. There, the police stopped a car believed to

be used by “bootleggers” to smuggle alcohol in violation of the

Prohibition laws. Id. at 160, 45 S. Ct. at 287, 69 L. Ed. at

15
554. The Court upheld the warrantless search because the police

possessed probable cause and because “it [was] not practicable

to secure a warrant” given that “the vehicle [could have been]

quickly moved out of the locality or jurisdiction.” Id. at 153,

45 S. Ct. at 285, 69 L. Ed. at 551. The Court noted that,

historically, Fourth Amendment jurisprudence had distinguished

between searches of structures, such as a house, and readily

moveable vehicles, such as a ship or automobile. Ibid.; see

also Carney, supra, 471 U.S. at 390, 105 S. Ct. at 2069, 85 L.

Ed. 2d at 412 (stating that “capacity to be ‘quickly moved’ was

clearly the basis of the holding in Carroll”). Thus, the

vehicle’s inherent mobility provided the exigency rationale for

the exception to the warrant requirement. Carroll, supra, 267

U.S. at 153, 45 S. Ct. at 285, 69 L. Ed. at 551.

The second rationale is that, due to the pervasive

governmental regulation of motor vehicles, an individual is

afforded a lesser expectation of privacy in an automobile.

Carney, supra, 471 U.S. at 391-93, 105 S. Ct. at 2069-70, 85 L.

Ed. 2d at 413-14 (stating that “pervasive schemes of regulation

. . . necessarily lead to reduced expectations of privacy” in

motor vehicles); Chambers, supra, 399 U.S. at 52, 90 S. Ct. at

1982, 26 L. Ed. 2d at 429 (noting that for “purposes of the

Fourth Amendment there is a constitutional difference between

houses and cars”). Thus, the Supreme Court has held that, so

16
long as the probable-cause standard is met, the reduced

expectation of privacy in a vehicle and its ready mobility

justify an exception to the warrant requirement. Carney, supra,

471 U.S. at 391-93, 105 S. Ct. at 2069-70, 85 L. Ed. 2d at 413-

14.

The third rationale, and in many ways the most compelling

one, is that, for Fourth Amendment purposes, an immediate search

of a vehicle may represent a lesser intrusion than impounding

the vehicle and detaining its occupants while the police secure

a warrant. See Chambers, supra, 399 U.S. at 51-52, 90 S. Ct. at

1981, 26 L. Ed. 2d at 428. In Chambers, Justice White, writing

for the Court, mused that it was “debatable” whether “the

immobilization” of a motor vehicle while the police secured a

warrant was a “lesser” or “greater” intrusion than an immediate

warrantless search premised on probable cause. Ibid. He

concluded that either “seizing and holding a car before

presenting the probable cause issue to a magistrate” or

“carrying out an immediate search without a warrant” based on

probable cause were both “reasonable” courses under the Fourth

Amendment. Id. at 52, 90 S. Ct. at 1981, 26 L. Ed. 2d at 428.

Across the Supreme Court’s jurisprudential spectrum,

Justices have hewed to this viewpoint. Justice Marshall, in a

dissent joined by Justice Brennan, wrote that “the warrantless

search [of an automobile] is permissible because a warrant

17
requirement would not provide significant protection of the

defendant’s Fourth Amendment interests.” United States v. Ross,

456 U.S. 798, 831, 102 S. Ct. 2157, 2176, 72 L. Ed. 2d 572, 598

(1982) (Marshall, J., dissenting). Justice Marshall observed

that the process of seizing a car and detaining the driver while

securing a search warrant “would be more intrusive than the

actual search itself.” Ibid. He therefore adhered to the

position that “even where police can bring both the defendant

and the automobile to the station safely and can house the car

while they seek a warrant, the police are permitted to decide

whether instead to conduct an immediate search of the car.”

Ibid. (emphasis omitted).

We are unaware of any contemporary United States Supreme

Court Justice, past or present, who has dissented from the

current iteration of the federal automobile exception.1 No

1 In Dyson, supra, although dissenting from the majority’s
summary reversal of the Maryland Court of Appeals, Justices
Breyer and Stevens nonetheless “agree[d] that the Court’s per
curiam opinion correctly states the law” on the automobile
exception. 527 U.S. at 468, 119 S. Ct. at 2014, 144 L. Ed. 2d
at 446 (Breyer, J., dissenting). In Labron, supra, Justices
Stevens and Ginsburg dissented solely on procedural grounds in
that automobile search case. 518 U.S. at 941-42, 116 S. Ct. at
2487-88, 135 L. Ed. 2d at 1036-37 (Stevens, J., dissenting).
They believed that the Pennsylvania Supreme Court had rested its
decision on its own Constitution, and for that reason the United
States Supreme Court should not have exercised its jurisdiction.
Ibid. They did not disagree with the majority’s description of
the federal automobile exception. Ibid.

18
federal case cited by the dissent suggests any wavering over the

now well-settled automobile exception.

B.

The overwhelming majority of states have adopted the

federal approach to the automobile exception and do not require

exigency beyond the inherent mobility of the vehicle.2 See

2 See Mewbourn v. State, 570 So. 2d 805, 810 (Ala. Crim. App.
1990); State v. Prasertphong, 75 P.3d 675, 685 (Ariz. 2003);
State v. Crane, 446 S.W.3d 182, 186 (Ark. 2014); People v.
Chavers, 658 P.2d 96, 101 (Cal. 1983); People v. Hill, 929 P.2d
735, 739 (Colo. 1996); State v. Winfrey, 24 A.3d 1218, 1224
(Conn. 2011); Reeder v. State, 783 A.2d 124 (Del. 2001); State
v. Starkey, 559 So. 2d 335, 339 (Fla. Dist. Ct. App. 1990);
State v. Lejeune, 576 S.E.2d 888, 892 (Ga. 2003); State v.
Tucker, 979 P.2d 1199, 1200 (Idaho 1999); People v. Contreras,
22 N.E.3d 368, 377 (Ill. App. Ct. 2014); Meister v. State,
933 N.E.2d 875, 880 (Ind. 2010); State v. Cain, 400 N.W.2d 582,
585 (Iowa 1987); State v. Conn, 99 P.3d 1108, 1114 (Kan. 2004)
Chavies v. Commonwealth, 354 S.W.3d 103, 111 (Ky. 2011); State
v. Thompson, 842 So. 2d 330, 336-38 (La. 2003); State v. Melvin,
955 A.2d 245, 250 (Me. 2008); Fair v. State, 16 A.3d 211, 217
(Md. Ct. Spec. App. 2011); Commonwealth v. Motta, 676 N.E.2d
795, 799 (Mass. 1997); People v. Kazmierczak, 605 N.W.2d 667,
672 (Mich. 2000); State v. Gauster, 752 N.W.2d 496, 508 (Minn.
2008); Franklin v. State, 587 So. 2d 905, 907 (Miss. 1991);
State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. 1990); State v.
Neely, 462 N.W.2d 105, 109-10 (Neb. 1990); State v. Lloyd,
312 P.3d 467, 474 (Nev. 2013); People v. Galak, 616 N.E.2d 842,
844 (N.Y. 1993); State v. Isleib, 356 S.E.2d 573, 576-77 (N.C.
1987); State v. Zwicke, 767 N.W.2d 869, 873 (N.D. 2009); State
v. Welch, 480 N.E.2d 384, 387-88 (Ohio), cert. denied, 474 U.S.
1010, 106 S. Ct. 537, 88 L. Ed. 2d 468 (1985); Gomez v. State,
168 P.3d 1139, 1145 (Okla. Crim. App. 2007); State v. Meharry,
149 P.3d 1155, 1157 (Or. 2006); Commonwealth v. Gary, 91 A.3d
102, 138 (Pa. 2014); State v. Werner, 615 A.2d 1010, 1014 (R.I.
1992); State v. Weaver, 649 S.E.2d 479, 482 (S.C. 2007); State
v. Sweedland, 721 N.W.2d 409, 412-13 (S.D. 2006); State v.
Saine, 297 S.W.3d 199, 207 (Tenn. 2009); State v. Guzman, 959
S.W.2d 631, 634 (Tex. Crim. App. 1998); Duncan v. Commonwealth,
684 S.E.2d 838, 840 (Va. Ct. App. 2009); State v. Tompkins, 423
19
Commonwealth v. Gary, 91 A.3d 102, 133-34 (Pa. 2014) (noting

that “most states have adopted the federal automobile

exception”). Moreover, a number of states have recently

eliminated an exigent-circumstances requirement for automobile

searches. See Commonwealth v. Motta, 676 N.E.2d 795, 800 (Mass.

1997); State v. Lloyd, 312 P.3d 467, 474 (Nev. 2013); State v.

Zwicke, 767 N.W.2d 869, 873 (N.D. 2009); Gary, supra, 91 A.3d at

138 (Pa.); State v. Werner, 615 A.2d 1010, 1013-14 (R.I. 1992).

The Pennsylvania Supreme Court recently jettisoned its

exigent-circumstances standard and adopted the federal

automobile exception. Gary, supra, 91 A.3d at 138. Its reasons

for doing so were: (1) the “complexity” and “inconsistency” in

“decisional law as to what circumstances constitute sufficient

danger to the police or the public such that an exigency is

present”; (2) the speculative nature of determining whether

unknown persons will attempt to tamper with evidence in the

vehicle if unguarded; and (3) the Court’s inability to

articulate “a consistent, clear, understandable, and readily

applicable conception of exigency sufficient to support a

warrantless vehicular search.” Id. at 134-37. The Pennsylvania

high court ultimately concluded that it was “difficult, if not

impossible, for police officers in the field to determine how

N.W.2d 823, 829 (Wis. 1988); Phippen v. State, 297 P.3d 104, 108
(Wyo. 2013).
20
[it] would rule in motor vehicle search and seizure cases, the

circumstances of which are almost endlessly variable.” Id. at

137.

It is noteworthy that those few states that require exigent

circumstances are among the least populous or least densely

populated states in the country. See State v. Phillips, 696

P.2d 346, 350 (Haw. 1985); State v. Elison, 14 P.3d 456, 471

(Mont. 2000); State v. Sterndale, 656 A.2d 409, 411 (N.H. 1995);

State v. Gomez, 932 P.2d 1, 12 (N.M. 1997); State v. Anderson,

910 P.2d 1229, 1236 (Utah 1996) (plurality); State v. Bauder,

924 A.2d 38, 50 (Vt. 2007); State v. Tibbles, 236 P.3d 885, 888

(Wash. 2010). Those states do not have the same degree of fast-

flowing traffic on crowded highways that pose such a special

danger to protracted motor-vehicle stops in New Jersey.

C.

At least as of 1981, this Court did not construe the

automobile exception under Article I, Paragraph 7 of our State

Constitution differently from the federal interpretation under

the Fourth Amendment. In Alston, supra, we upheld the

constitutionality of the police search of the defendants’ car

based on the United States Supreme Court’s traditional

automobile exception to the warrant requirement. 88 N.J. at

235.

In Alston, we expressed approval of the federal template

21
for the automobile-exception “recognized in Carroll and

Chambers.” Id. at 233; see also Paul Stern, Revamping Search-

and-Seizure Jurisprudence Along the Garden State Parkway, 41

Rutgers L.J. 657, 669 (2010) (“Historically, the New Jersey

Supreme Court aligned its analysis [of the automobile exception]

with that of the United States Supreme Court.”). We did not

turn to Article I, Paragraph 7 of our State Constitution as a

separate source of rights, but instead to Chambers as the

controlling law. Alston, supra, 88 N.J. at 231-35. We rejected

the positions of the defendants and the Appellate Division

concerning “the level of ‘exigent circumstances’” required for a

warrantless automobile search. In doing so, we stated that

“[a]ccording to Chambers, the exigent circumstances that justify

the invocation of the automobile exception are the

unforeseeability and spontaneity of the circumstances giving

rise to probable cause, and the inherent mobility of the

automobile stopped on the highway.” Id. at 233 (emphasis added)

(internal citations omitted). The “unforeseeability and

spontaneity” requirement in Alston came from the United States

Supreme Court’s language in Chambers, supra, which observed that

“the circumstances that furnish probable cause to search a

particular auto for particular articles are most often

unforeseeable; moreover, the opportunity to search is fleeting

since a car is readily movable.” 399 U.S. at 50-51, 90 S. Ct.

22
at 1981, 26 L. Ed. 2d at 428; see Alston, supra, 88 N.J. at 234

(crediting Chambers for this Court’s automobile-exception

standard).

Significantly, we also made clear in Alston, supra, that

merely because “the particular occupants of the vehicle may have

been removed from the car, arrested, or otherwise restricted in

their freedom of movement,” police were not required to secure a

warrant. 88 N.J. at 234. Last, relying on Chambers, we

emphasized that “when there is probable cause to conduct an

immediate search at the scene of the stop, the police are not

required to delay the search by seizing and impounding the

vehicle pending review of that probable cause determination by a

magistrate.” Id. at 234-35.

In State v. Martin, 87 N.J. 561, 563-64 (1981), decided the

same day as Alston, we again upheld the search of a car based on

“the automobile exception as applied by the Supreme Court in

Chambers.” In that case, a police officer discovered an

“unoccupied and parked” station wagon that fit the description

of the vehicle used in an armed robbery. Id. at 563-65. The

officer peered through the vehicle’s rear windows and observed

in plain view evidence related to the crime. Id. at 565. The

officer had the station wagon towed to headquarters, where it

was searched without a warrant. Ibid.

Citing to Chambers, we held that “the circumstances that

23
furnished the officers with probable cause were unanticipated

and developed spontaneously.” Id. at 570. We also held that

“where police have probable cause to believe that [a] vehicle

contains contraband or evidence of criminal activity,” a

warrantless search under the automobile exception is

permissible, even if the vehicle is parked and unoccupied. Id.

at 567. We restated the principle in Chambers that “when police

have probable cause to conduct a warrantless search of an

automobile at the spot where the officers encounter the car,

they may constitutionally remove the vehicle to police

headquarters and there conduct the search without first

obtaining a warrant.” Id. at 568.

Although not necessary to justify a search pursuant to the

automobile exception, the Court listed an independent exigency

warranting an immediate search of the vehicle: the suspects in

the armed robbery were still at large and “might have returned

at any moment to move the car or remove the car’s contents.”

Id. at 569. We affirmed that we were keeping faith with the

Chambers paradigm. Id. at 570.

According to one commentator, “[f]ollowing Alston, the

state’s automobile exception, as it pertained to traffic stops,

appeared clear: provided that probable cause arose at the time

of the seizure, the search of the automobile was warranted.”

Stern, supra, 41 Rutgers L.J. at 671.

24
 In State v. Colvin, 123 N.J. 428, 429, 437 (1991), we

upheld the warrantless search of a drug suspect’s parked car

primarily on the basis of a general exigent-circumstances

analysis, even though we introduced the issue as one that

“concerns the scope of the ‘automobile exception.’” In that

case, the police arrested the defendant for his role in a

suspected drug transaction. Id. at 430. Shortly afterwards,

the police were advised by an informant that drugs were stashed

in the defendant’s car and that his confederates, who were

alerted to his arrest, would attempt to remove drugs from the

car. Ibid. On that basis, the police conducted a warrantless

search of the parked car and recovered cocaine. Ibid. Colvin

evidently did not rely on Alston or Martin, or even Chambers, as

the primary precedential guide for resolving the search issue.

Rather, Colvin relied on Coolidge v. New Hampshire, 403 U.S.

443, 462, 91 S. Ct. 2022, 2036, 29 L. Ed. 2d 564, 580 (1971)

(plurality), a case involving the search of a parked car on

private property without a valid warrant. Colvin, supra, 123

N.J. at 434-35. The search of the car in Coolidge, supra, was

determined to be unconstitutional because the police had known

for some time of the car’s role in a murder. 403 U.S. at 460,

91 S. Ct. at 2035, 29 L. Ed. 2d at 579. The probable cause in

Coolidge did not arise from spontaneous or unforeseeable

circumstances.

25
 We found in Colvin, supra, that “nearly all of the factors

missing in Coolidge were present” to justify a warrantless

search: “Any element of surprise had been lost; the vehicle

contained the ‘contraband’ drugs; there were ‘confederates

waiting to move the evidence’; the police would need ‘a special

police detail to guard the immobilized automobile.’” 123 N.J.

at 434-35 (quoting Coolidge, supra, 403 U.S. at 462, 91 S. Ct.

at 2036, 29 L. Ed. 2d at 580). Thus, although the Court

repeatedly invoked the nomenclature of the automobile exception

in Colvin, the constitutional analysis was primarily based on

pure exigent circumstances. Colvin was decided strictly on

Fourth Amendment grounds. The Court evidently concluded that

its decision was harmonious with federal jurisprudence because

Colvin does not once mention our State Constitution as a

separate source of rights.

D.

In Cooke, supra, this Court broke ranks with the United

States Supreme Court’s Fourth Amendment automobile-exception

jurisprudence, which held in Labron -- and later again in Dyson

-- that “‘if a car is readily mobile and probable cause exists

to believe it contains contraband, the Fourth Amendment . . .

permits police to search the vehicle without more.’” 163 N.J.

at 665, 671 (quoting Labron, supra, 518 U.S. at 940, 116 S. Ct.

at 2487, 135 L. Ed. 2d at 1036); see Dyson, supra, 527 U.S. at

26
467, 119 S. Ct. at 2014, 144 L. Ed. 2d at 445. Notably, the

United States Supreme Court in Labron rejected the Pennsylvania

Supreme Court’s automobile-exception rule, which permitted

warrantless searches when “‘unforeseen circumstances involving

the search of an automobile are coupled with the presence of

probable cause.’” Cooke, supra, 163 N.J. at 666 (quoting

Labron, supra, 518 U.S. at 940, 116 S. Ct. at 2487, 135 L. Ed.

2d at 1035).

Our Court announced for the first time in Cooke that, under

Article I, Paragraph 7 of our State Constitution, the

warrantless search of a vehicle could only be justified based on

exigent circumstances in addition to probable cause. Id. at

671.

The federal automobile-exception jurisprudence, until

Labron, was far from a model of clarity. Indeed, Labron did not

even cite to Chambers as authority, the very case from which we

crafted in Alston the requirement that probable cause must arise

from unforeseeable and spontaneous circumstances.

In Cooke, however, the Court parted ways not only with the

federal automobile-exception standard, but also with its own

automobile exception articulated in Alston. Cooke imposed a

full-blown exigency analysis, holding that “exigency in the

constitutional context amounts to ‘circumstances that make it

impracticable to obtain a warrant when the police have probable

27
cause to search the car.’” Id. at 676 (quoting Colvin, supra,

123 N.J. at 437). That approach eliminated any vestige of the

automobile exception, even the one we defined in Alston. That

exacting exigent-circumstances standard, if faithfully applied,

should result in the securing of search warrants in most

automobile-search cases -- and probably should have resulted in

one even in Cooke.

The exigency requirement in Alston, as the Cooke Court

noted, was the “‘unforeseeability and spontaneity of the

circumstances giving rise to probable cause, and the inherent

mobility of the automobile,’” id. at 672 (quoting Alston, supra,

88 N.J. at 233), and “the unanticipated circumstances that give

rise to probable cause occur swiftly,” ibid. (citing Alston,

supra, 88 N.J. at 234). The language in Alston ensured that

police officers who possessed probable cause well in advance of

an automobile search sought a warrant. Police officers could

not sit on probable cause and later conduct a warrantless

search, for then the inherent mobility of the vehicle would have

no connection with a police officer not procuring a warrant.

The Alston standard provided a limited exigency to the warrant

requirement.

However, just because the circumstances giving rise to

probable cause are unforeseeable and spontaneous does not mean

that it is impracticable to secure a warrant. For example, a

28
car may be stopped for speeding, and the officer may smell an

overpowering odor of marijuana and then arrest, handcuff, and

place the driver in the back of a patrol car. Although the

probable cause to search arose in an unforeseeable and

spontaneous fashion, the officer under the Cooke exigent-

circumstances standard should still obtain a search warrant

because there is no danger of evidence tampering if the car is

impounded and the occupants secured.

Accordingly, searches that had been permissible under

Alston were no longer lawful under Cooke. But the question is

whether Cooke gave rise to a practicable and workable standard

capable of producing fairly uniform results. We now turn to the

facts of Cooke, to which the Court applied its new exigent-

circumstances standard.

In Cooke, supra, a police officer conducting surveillance

observed the defendant participate in drug transactions and, on

one occasion, place suspected drugs in a Ford Escort. 163 N.J.

at 662. The defendant and an accomplice drove off in another

car, but were stopped by police officers serving as a perimeter

team. Ibid. The officers arrested the defendant on an

unrelated warrant and detained the accomplice. Id. at 662-63.

The officers took from the defendant his keys to the Escort and

conducted an on-scene search of the car, which uncovered illicit

drugs. Id. at 663.

29
 The trial court and Appellate Division both concluded that

a search of the Escort was not justified by exigent

circumstances. Ibid. This Court, however, reversed on the

ground that it would have been impracticable to require the

police to obtain a warrant and therefore an immediate search was

permissible. Id. at 675. However, the Escort was under

continuing surveillance by one officer, and other officers could

have impounded the car and secured a search warrant. Id. at

662-63. Viewed in that light, the exigency concerns identified

by the Court -- e.g., third parties may have been alerted and

removed drugs from the car or the car itself, id. at 675 -- were

not real given that the car could easily have been placed under

police control.

The finding of exigency in Cooke was questionable. When

the driver of a car is arrested, secured by handcuffs, or placed

in a patrol vehicle, and the car can be impounded, the procuring

of a search warrant would seem practicable in most cases. In

contrast, a warrantless search would have been permissible under

the Alston standard because the probable cause arose from

unforeseeable and spontaneous circumstances.

E.

In Pena-Flores, supra, 198 N.J. at 11, 28, the Court

reaffirmed the exigent-circumstances standard enunciated in

Cooke, rejecting the State’s plea for a return to the Alston

30
paradigm. The Court declared that “the warrantless search of an

automobile in New Jersey is permissible where (1) the stop is

unexpected; (2) the police have probable cause to believe that

the vehicle contains contraband or evidence of a crime; and (3)

exigent circumstances exist under which it is impracticable to

obtain a warrant.” Id. at 28. The Court emphasized that

“exigency encompasses far broader considerations than the mere

mobility of the vehicle” and that “[e]xigency must be determined

on a case-by-case basis” with an evaluation of the totality of

circumstances focused on “officer safety and the preservation of

evidence.” Id. at 28-29. The Court stated that in assessing

exigency, “[l]egitimate considerations are as varied as the

possible scenarios surrounding an automobile stop.” Id. at 29.

The Court then gave examples of the considerations that police

officers might take into account in determining exigency:

the time of day; the location of the stop; the
nature of the neighborhood; the unfolding of
the events establishing probable cause; the
ratio of officers to suspects; the existence
of confederates who know the location of the
car and could remove it or its contents;
whether the arrest was observed by passersby
who could tamper with the car or its contents;
whether it would be safe to leave the car
unguarded and, if not, whether the delay that
would be caused by obtaining a warrant would
place the officers or the evidence at risk.

[Ibid.]

The Court acknowledged “that exigency assessments are

31
difficult for the officer on the street,” but considered “the

importance of the rights involved” as a reason for not returning

“to a pure Alston analysis.” Id. at 33. The Court encouraged

the use of telephonic and electronic warrants as a means to meet

the constitutional challenges of motor-vehicle stops. Id. at

33-36. The Court maintained that the police should be given

“access to an efficient and speedy electronic and telephonic

warrant procedure that will be available to them on the scene;

that will obviate the need for difficult exigency assessments;

and that will guarantee our citizens the protections that the

warrant requirement affords.” Id. at 36.

To advance that goal, the Court established a Task Force

“to address the practical issues involved in obtaining

telephonic and electronic warrants” and “make practical

suggestions to ensure that technology becomes a vibrant part of

our process.” Id. at 35.

V.

A.

In the wake of Pena-Flores, this Court created the Supreme

Court Special Committee on Telephonic and Electronic Search

Warrants, which issued its report in January 2010. Report of

the Supreme Court Special Committee on Telephonic and Electronic

Search Warrants (2010). In its Report, the Special Committee

made a number of observations and recommendations, some of which

32
are relevant to our analysis.

The Special Committee noted that no jurisdiction in the

nation “had established statewide procedures for obtaining

telephonic search warrants.” Id. at 9. The Special Committee

specifically addressed the San Diego Search Warrant Project,

which was cited in Pena-Flores “in support of the more

widespread use of telephonic applications for search warrants.”

Ibid. The Special Committee commented that “a closer look at

the [San Diego project] revealed that only 14 of 122 search

warrants were telephonic warrants, and not a single warrant,

telephonic or otherwise, was issued solely for the search of an

automobile.” Ibid. (citing Laurence A. Benner & Charles T.

Samarkos, Searching for Narcotics in San Diego: Preliminary

Findings from the San Diego Search Warrant Project, 36 Cal. W.

L. Rev. 221 (2000)). The Committee reasoned that “the San Diego

study did not offer much guidance” for New Jersey roadside stops

because “California follows the federal standard regarding

warrantless automobile searches.” Id. at 10.

The Special Committee expressed concerns about the dangers

to police officers and a car’s driver and occupants resulting

from extended stops “on the sides of heavily-traveled highways

and roads” as an officer “engage[s] in seeking a telephonic

warrant.” Id. at 17. The Committee also recognized that the

warrant process might implicate “resource issues” for smaller

33
departments. Ibid. The Committee concluded that “safety and

police resource concerns dictated” that search-warrant

applications “be completed in no more than 45 minutes, with an

ideal goal of 30 minutes.” Ibid.

The Committee outlined the steps to be taken in securing a

telephonic search warrant when a police officer “believes [that]

there is probable cause to search”: (1) the officer must first

“contact[] the county’s on-duty prosecutor”; (2) the officer and

on-duty prosecutor must then “have a discussion regarding

whether or not to request a search warrant”; (3) if the

prosecutor “believes a search warrant is necessary, the

prosecutor, with the police officer still on the connection,

contacts the on-duty judge”; (4) the judge must administer an

oath to the officer; (5) the officer must “identify himself,

state the purpose of the request and present facts supporting

the applications”; and (6) the officer must give sworn oral

testimony. Id. at 19.

Given those multiple steps, the question remained whether

the Committee’s 30- to 45-minute timeframe for securing

telephonic search warrants was feasible.

B.

Following the Special Committee’s Report, the

Administrative Office of the Courts conducted two pilot

programs, one in Mercer County and another in Burlington County.

34
See Burlington Vicinage, Telephonic Search Warrants (Pena-

Flores) Pilot Program. The Mercer County pilot program lasted

only two months, yielding “very few telephonic search warrant

applications” and “very little useable data.” Id. at 3-4. That

prompted the Burlington County pilot program, which ran from

September 2011 to March 2012. Id. at 4, 6.

During that period, the State Police and local law-

enforcement agencies filed 42 telephonic automobile search-

warrant applications in Burlington County. Id. at 6. “The

average request for an automobile warrant took approximately 59

minutes,” from the inception of the call to its completion.

Ibid.

Separately, the State Police reported to the Administrative

Office of the Courts that, during the Burlington County pilot

program’s six-month timeframe, Troop C applied for 16 telephonic

search warrants, with the process taking, on average, 1.5 to 2

hours. Id. at 10. The State Police also noted that, since

Pena-Flores, its “state-wide consent to search requests r[o]se

from approximately 300 per year to over 2500 per year.” Ibid.

(emphasis omitted). The State Police explained that its

“current patrol policy and practice is to exhaust the consent

search option prior to making a determination to seek a warrant,

telephonic or in-person.” Ibid. In the Burlington County

project, the State Police obtained the driver’s or occupants’

35
consent to search in 95% of the motor-vehicle stops. Id. at 7.

C.

In State v. Shannon, 210 N.J. 225, 227 (2012), we declined

the State’s request to revisit Pena-Flores, finding that the

motor-vehicle data submitted by the State was insufficient “to

establish the ‘special justification’ needed to depart from

precedent.”3 In the event of a future challenge to Pena-Flores,

we invited the parties, including the Attorney General, “to

amass and develop a more thorough, statistical record over time

relating to motor vehicle stops by the State Police and local

authorities.” Ibid. We indicated that such “information should

include, where possible, (a) the total number of motor vehicle

stops, (b) the number of warrantless probable cause searches

conducted, consent searches requested, consent searches

conducted, and vehicles impounded -- both before and after Pena-

Flores -- and (c) other relevant information.” Id. at 227-28.

Following Shannon, the Office of Law Enforcement

Professional Standards published a report entitled “The Effects

of Pena-Flores on Municipal Police Departments.” Second Report:

The Effects of Pena-Flores on Municipal Police Departments

3 The Burlington County Study was not before the Court at the
time Shannon was decided.

36
(2013).4 The Report analyzed statistical data submitted by 103

participating municipal police departments and the State Police

regarding automobile searches before and after the decision in

Pena-Flores. The one firm conclusion reached by the Office of

Professional Standards was that “after the Pena-Flores decision,

there was a noticeable increase in consent to search requests

for both municipal departments and the State Police; even with

only a slight increase in the number of motor vehicle stops.”

Id. at 38. Indeed, since Pena-Flores, State Police consent

searches surged ten-fold and municipal law enforcement consent

searches increased by two hundred percent. Id. at 14.5 In

4 The second report incorporates all statistical information
contained in the first report.

5 Automobile Consent Searches Conducted by State Police
Pre-Pena-Flores Post-Pena-Flores
April April April April April April
2008 2009 2010 2011 2012 2013
Granted 19 95 209 229 224 217
Denied 2 13 13 13 40 10

Automobile Consent Searches Conducted by Municipal Departments
Pre-Pena-Flores Post-Pena-Flores
April April April April April April
2008 2009 2010 2011 2012 2013
Granted 96 121 176 228 271 365
Denied 6 5 6 10 7 22

Pena-Flores was decided on February 25, 2009.

Although the number of consent searches by municipal departments
increased by nearly 100 from April 2012 to April 2013, the
Report states that this increase reflects better reporting by
police departments, rather than an increase in the actual number
of consent searches. Pena-Flores Report, supra, at 15.
37
addition, the statistics reveal that more than 95% of operators

or occupants consented to the search of their vehicles. Id. at

14, 19. Overall, in the period after Pena-Flores, the number of

municipal automobile searches nearly doubled due to the

increased number of consent searches. By contrast, search

warrant requests from municipal departments did not increase to

a statistically significant level, and those from the State

Police have climbed but account for only a fraction of the total

number of searches. See id. at 27, 38.6 At least among

municipal departments, the number of non-consent, warrantless

searches have remained fairly constant before and after Pena-

Flores. Id. at 32.7

6 Automobile Search Warrant Requests Made by State Police
Pre-Pena-Flores Post-Pena-Flores
April 2008 April April April April April
2009 2010 2011 2012 2013
0 3 13 11 19 32

Automobile Search Warrant Requests Made by Municipal Departments
Pre-Pena-Flores Post-Pena-Flores
April 2008 April April April April April
2009 2010 2011 2012 2013
4 8 12 7 7 15
7 Warrantless Automobile Searches Based on Probable Cause
Pre-Pena-Flores Post-Pena-Flores
April April April April April April
2008 2009 2010 2011 2012 2013
Municipal 141 174 175 157 129 157
Departments
State -- -- -- -- 2 2
Police

38
 VI.

The issue before the Court is whether to continue down the

path laid by Cooke and reinforced by Pena-Flores, recognizing

that Cooke departed from our decision in Alston. The resolution

of the issue implicates the doctrine of stare decisis.

Stare decisis promotes consistency, stability, and

predictability in the development of legal principles and

respect for judicial decisions. See Shannon, supra, 210 N.J. at

226. For that reason, a “special justification” is required to

depart from precedent. State v. Brown, 190 N.J. 144, 157-58

(2007) (quoting Dickerson v. United States, 530 U.S. 428, 443,

120 S. Ct. 2326, 2336, 147 L. Ed. 2d 405, 419 (2000)).

Although stare decisis furthers important policy goals, it

is not an inflexible principle depriving courts of the ability

to correct their errors. Fox v. Snow, 6 N.J. 12, 23 (1950)

(Vanderbilt, C.J., dissenting) (“The doctrine of stare decisis

[does not] render[] the courts impotent to correct their past

errors . . . .”); see also White v. Twp. of N. Bergen, 77 N.J.

538, 550-52 (1978) (noting acceptance of “Vanderbilt thesis”).

Experience and further consideration will reveal, at times, that

a well-intentioned decision is not furthering the goal it was

Prior to April 2012, the State Police did not keep measurable
statistics in this category. Pena-Flores Report, supra, at 32.

39
intended to advance. Therefore, “the nature of the judicial

process requires the power to revise, to limit, and to overrule

if justice is to be done.” Shannon, supra, 210 N.J. at 227.

Stare decisis is not a command to perpetuate the mistakes of the

past. See Lawrence v. Texas, 539 U.S. 558, 577, 123 S. Ct.

2472, 2483, 156 L. Ed. 2d 508, 525 (2003). “Among the relevant

considerations in determining whether to depart from precedent

are whether the prior decision is unsound in principle [and]

unworkable in practice . . . .” Shannon, supra, 210 N.J. at

227.

The United States Supreme Court has not considered stare

decisis to be an “inexorable command” to continue down a

mistaken jurisprudential path and, accordingly, has reversed

itself on a number of occasions. See Lawrence, supra, 539 U.S.

at 577-78, 123 S. Ct. at 2483-84, 156 L. Ed. 2d at 525-26

(overturning Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.

Ct. 2841, 2846-47, 92 L. Ed. 2d 140, 149 (1986), and striking

down statute that made it crime for two persons of same sex “to

engage in certain intimate sexual conduct”); see, e.g., Arizona

v. Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 1723-24, 173 L. Ed.

2d 485, 501 (2009) (overturning New York v. Belton, 453 U.S.

454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768, 775 (1981),

and redefining when police may search car’s passenger

compartment incident to arrest); Gideon v. Wainwright,

40
372 U.S. 335, 342-45, 83 S. Ct. 792, 795-97, 9 L. Ed. 2d 799,

804-06 (1963) (overruling Betts v. Brady, 316 U.S. 455, 471,

62 S. Ct. 1252, 1261, 86 L. Ed. 1595, 1606 (1942), and providing

counsel to indigent defendants in state prosecutions); Brown v.

Bd. of Educ. of Topeka, 347 U.S. 483, 495, 74 S. Ct. 686, 692,

98 L. Ed. 873, 881 (1954) (overruling Plessy v. Ferguson, 163

U.S. 537, 548, 16 S. Ct. 1138, 1142, 41 L. Ed. 256, 260 (1896),

and striking down “separate but equal” doctrine).

The High Court also has not permitted an incorrect decision

to linger merely because it was of recent origin. See, e.g., W.

Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.

Ct. 1178, 1187, 87 L. Ed. 1628, 1639-40 (1943) (overturning

Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 600, 60 S.

Ct. 1010, 1015-16, 84 L. Ed. 1375, 1382 (1940), and holding that

schoolchildren cannot be compelled to salute flag or recite

Pledge of Allegiance); Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 227, 115 S. Ct. 2097, 2113, 132 L. Ed. 2d 158, 182

(1995) (overturning Metro Broad., Inc. v. Fed. Commc’ns Comm’n,

497 U.S. 547, 596-97, 110 S. Ct. 2997, 3026, 111 L. Ed. 2d 445,

483 (1990), and holding that all racial classifications made by

government actors must undergo strict scrutiny analysis).

In light of those principles, we now discuss whether Pena-

Flores is furthering the constitutional values that are

protected by Article I, Paragraph 7 of the New Jersey

41
Constitution and whether there is “special justification” for

departing from it.

VII.

A.

Clearly, the use of telephonic search warrants has not

resolved the difficult problems arising from roadside searches,

as the Court expected when it decided Pena-Flores. The Supreme

Court Special Committee on Telephonic and Electronic Search

Warrants was greatly concerned about the safety of police

officers and a car’s driver and occupants detained on the side

of a heavily traveled highway or road while a telephonic warrant

is secured. The Committee set a time limit for the completion

of such search-warrant applications: “no more than 45 minutes,

with an ideal goal of 30 minutes.” Supreme Court Telephonic

Warrants Report, supra, at 17. Nevertheless, nearly three years

after Pena-Flores, the Burlington County project commissioned by

the Administrative Office of the Courts found that the average

time for obtaining a telephonic warrant was 59 minutes, and the

State Police reported that Troop C experienced times of between

1.5 and 2 hours in the warrant-application process. Pena-Flores

Pilot Program, supra, at 6, 10. The hope that technology would

reduce the perils of roadside stops has not been realized.

Prolonged encounters on the shoulder of a crowded highway --

even within the range of 30 to 45 minutes -- may pose an

42
unacceptable risk of serious bodily injury and death. News

reports reveal the carnage caused by cars and trucks crashing

into police officers and motorists positioned on the shoulders

of our highways.8

The dramatic increase in the number of consent searches

since Pena-Flores is apparently an unintended consequence of

that decision. With hindsight, the explanation becomes clearer.

Consent searches avoid the dangers of protracted roadway stops

while search warrants are procured, and they remove the legal

unpredictability surrounding a warrantless search based on the

complex of factors detailed in Pena-Flores. We are not as

sanguine as defendant and amici about the benefits of consent

searches in such great numbers.

Not long ago, the State Police subjected minority motorists

8 See, e.g., Steph Solis, Seaside Heights Man Charged with DWI
After Crashing into Brick Patrol Car, Asbury Park Press, June
26, 2015, at 9A (police officer hospitalized after intoxicated
driver crashed into his patrol car during course of traffic
stop); Abbott Koloff, School Van Driver Dies in GSP Accident,
Bergen Record, July 24, 2014, at L-2 (man killed, two others
injured, when vehicle struck car and three pedestrians on
Parkway grassy median); Stephen Stirling, Two Officers Injured
in Roadside Accident, Star-Ledger, July 20, 2014, at 17 (two
police officers injured, one suffering broken ribs and “severe
cuts to the head and face,” after driver crashed into two patrol
cars during traffic stop); Stefanie Dazio & Christopher Maag,
Driver Charged in Crash that Killed Cop, Bergen Record, July 18,
2014, at A-1 (police officer killed while operating radar on
shoulder when rear-ended by tractor-trailer); Monroe Officer Hit
by SUV, Injured, Courier-Post, June 24, 2014, at 4A (police
officer suffered broken leg and knee injury after intoxicated
driver crashed into him during course of traffic stop).
43
to consent searches on a grossly disproportionate basis because

of racial profiling. Attorney General, Interim Report of the

State Police Review Team Regarding Allegations of Racial

Profiling, at 27, 30 (1999), available at

http://www.state.nj.us/lps/intm_419.pdf. As a result of the

abuse of consent searches, the State Police were placed under

the supervision of federal monitors pursuant to a consent

decree. See State v. Herrerra, 211 N.J. 308, 325 (2012)

(discussing consent decree). “After two independent monitors

reported substantial and uninterrupted compliance for the forty-

five months from early 2004 through December 2007, and after a

series of public hearings conducted by the Advisory Committee on

Police Standards, a federal judge granted the parties’ joint

application for termination of the consent decree.” Ibid.

Statistical data accumulated from the federal monitors’

reports indicated that “nearly ninety-five percent of detained

motorists granted a law enforcement officer’s request for

consent to search.” State v. Carty, 170 N.J. 632, 644-45 (2002)

(citing Monitors’ Second Report: Long-term Compliance Audit, at

8 (Jan. 2001); Monitors’ Third Report: Long-term Compliance

Audit, at 8 (Apr. 2001); Monitors’ Fourth Report: Long-term

Compliance Audit, at 8 (July 2001)). The federal reports’

finding that 95% of motorists accede to requests for consent to

search is confirmed by more recent reports. See Pena-Flores

44
Pilot Program, supra, at 7; Pena-Flores Report, supra, at 14,

19.

Given the widespread abuse of consent searches, this Court

in Carty forbade police officers from making consent-search

requests unless they had reasonable and articulable suspicion to

believe a vehicle contained contraband or evidence of an

offense. Id. at 647. Still, that standard does not remove the

coercive effect of a search request made to a motorist stopped

on the side of a road. We recognized in Carty “the inherently

coercive predicament of the driver who is stopped on the highway

and faced with the perceived choice of either refusing consent

to search and therefore increasing the likelihood of receiving a

traffic summons, or giving consent to search in the hope of

escaping with only a warning.” State v. Domicz, 188 N.J. 285,

306 (2006). Under those and other like circumstances, “it is

not a stretch of the imagination to assume that the individual

feels compelled to consent.” Carty, supra, 170 N.J. at 644.

To be sure, consent searches are permissible if not abused.

Nevertheless, when it decided Pena-Flores, the Court did not

expect that the rejection of the automobile exception would lead

to police dependency on consent searches. We also must be

mindful that consent searches may be made on less than probable

cause and that after Pena-Flores the number of searches

conducted by municipal police officers nearly doubled due to the

45
increased number of consent searches.

We are not willing to conclude that the increase in consent

searches after Pena-Flores is serendipitous.

B.

Law enforcement’s new-found reliance on consent searches,

in part, is an apparent reflection of the difficulty presented

to police officers by the Pena-Flores multi-factor exigent-

circumstances standard. Under that standard, before conducting

a warrantless roadside search, police officers must take into

account a dizzying number of factors. Pena-Flores, supra, 198

N.J. at 29. These factors leave open such questions as “what is

the acceptable ratio of officers to suspects, what should the

officer know about the neighborhood, how is he to know if

confederates are skulking about, and what does it mean to

consider leaving the car unguarded when the car can be safely

towed and impounded?” Id. at 47 (Albin, J., dissenting). The

statistics suggest that the Pena-Flores exigency formula has

left “many police officers with an unwillingness to hazard a

guess, fearing that a mistaken decision will result in the

suppression of critical evidence.” See ibid. For a law

enforcement officer responding to rapidly evolving events on the

side of a road, the exigency formula requires the processing of

such confounding and speculative information that we cannot

expect uniform and consistent decision-making. Thus, searches

46
based on the Pena-Flores factors must inevitably “lead to widely

divergent outcomes and allow trial courts and appellate courts

routinely to second-guess the officers on the scene and

eventually themselves.” Ibid.

This is the very conclusion reached by the Pennsylvania

Supreme Court, which recently abandoned its own multi-factor

exigency analysis for warrantless searches of automobiles. In

Gary, supra, the Pennsylvania high court expressed that its

exigency requirement “is a difficult standard to apply, not just

for the court, but also, and more importantly, for police

officers operating in the field, often in the midst of a fast-

moving investigation.” 91 A.3d at 135. The court also detailed

the inconsistent judicial outcomes emanating from its exigency

standard. Id. at 135-36. In adopting the federal automobile

exception, the Gary Court acknowledged the futility of its own

standard because exigency “can turn on small facts in the midst

of a complex, volatile, fast-moving, stressful, and potentially

threatening situation in the field.” Id. at 134.

The dissent in Pena-Flores, supra, wrongly predicted that

our exigency standard would lead prudent police officers to

impound cars and detain their occupants while securing a

warrant, 198 N.J. at 47 (Albin, J., dissenting); instead, those

risk-averse police officers have responded with an explosion of

consent searches.

47
 C.

In Pena-Flores, the Court stated that, in determining

exigency, the fundamental inquiry is “[h]ow the facts of the

case bear on the issues of officer safety and the preservation

of evidence.” Id. at 28-29 (majority). However, as the State

submits, typically, “police officers will not search a vehicle

at roadside until the situation is under control,” that is, “a

vehicle will not be searched until that search can be done

safely.” If an automobile’s occupants are secured or detained

so that they cannot destroy evidence or gain access to a weapon,

the exigency to search the vehicle is illusory and, by all

rights, a warrant should be secured. Accepting this reality

means that, for the most part, warrantless roadside searches

will not occur -- unless done by consent. That logic is

dictated by our decision in State v. Eckel, 185 N.J. 523, 524

(2006).

In Eckel, we held that the warrantless search of an

automobile is impermissible under the search-incident-to-arrest

exception once a vehicle’s driver or occupant has been arrested,

removed, and secured. Id. at 541. We identified the two

justifications for the search-incident-to-arrest exception --

“the protection of the police and the preservation of evidence,”

id. at 524, the very same factors identified as bearing on

exigency to conduct a probable-cause warrantless search of a

48
car, Pena-Flores, supra, 198 N.J. at 28-29. In Eckel, supra, we

determined that police safety and evidence preservation are not

a basis for a vehicle search incident to an arrest when a person

“effectively is incapacitated.” 185 N.J. at 524. The same must

be true in the case of a warrantless search of a car predicated

on probable cause.

Accordingly, the routine police-citizen roadside encounter

is unlikely to involve a genuine exigency that will lead to a

warrantless search absent consent.

D.

The current approach to roadside searches premised on

probable cause -- “get a warrant” -- places significant burdens

on law enforcement. On the other side of the ledger, we do not

perceive any real benefit to our citizenry by the warrant

requirement in such cases -- no discernible advancement of their

liberty or privacy interests. When a police officer has

probable cause to search a car, is a motorist better off being

detained on the side of the road for an hour (with all the

accompanying dangers) or having his car towed and impounded at

headquarters while the police secure a warrant? Is not the

seizure of the car and the motorist’s detention “more intrusive

than the actual search itself”? See Ross, supra, 456 U.S. at

831, 102 S. Ct. at 2176, 72 L. Ed. 2d at 598 (Marshall, J.,

dissenting). At the very least, which is the greater or lesser

49
intrusion is debatable, as Justice White observed in Chambers,

supra, 399 U.S. at 51-52, 90 S. Ct. at 1981, 26 L. Ed. 2d at

428. For that reason, the United States Supreme Court has

concluded that “carrying out an immediate search without a

warrant” based on probable cause is “reasonable” under the

Fourth Amendment. Id. at 52, 90 S. Ct. at 1981, 26 L. Ed. 2d at

428. We reach the same conclusion under Article I, Paragraph 7

of the New Jersey Constitution, subject to the caveats in

Alston.

Although we believe that the exigent-circumstances standard

set forth in Cooke and Pena-Flores is unsound in principle and

unworkable in practice, we do not adopt the federal standard for

automobile searches because that standard is not fully consonant

with the interests embodied in Article I, Paragraph 7 of our

State Constitution.

VIII.

In Alston, supra, we held that the automobile exception

authorized the warrantless search of an automobile only when the

police have probable cause to believe that the vehicle contains

contraband or evidence of an offense and the circumstances

giving rise to probable cause are unforeseeable and spontaneous.

88 N.J. at 233. In articulating that standard, we believed we

were merely following the test set forth by the United States

Supreme Court in Chambers. Labron and Dyson make clear that

50
even an unforeseeability and spontaneity requirement is not part

of the federal automobile exception.

Here, we part from the United States Supreme Court’s

interpretation of the automobile exception under the Fourth

Amendment and return to the Alston standard, this time supported

by Article I, Paragraph 7 of our State Constitution. Alston

properly balances the individual’s privacy and liberty interests

and law enforcement’s investigatory demands. Alston’s

requirement of “unforeseeabilty and spontaneity,” id. at 233,

does not place an undue burden on law enforcement. For example,

if a police officer has probable cause to search a car and is

looking for that car, then it is reasonable to expect the

officer to secure a warrant if it is practicable to do so. In

this way, we eliminate the concern expressed in Cooke, supra --

the fear that “a car parked in the home driveway of vacationing

owners would be a fair target of a warrantless search if the

police had probable cause to believe the vehicle contained

drugs.” 163 N.J. at 667-68. In the case of the parked car, if

the circumstances giving rise to probable cause were foreseeable

and not spontaneous, the warrant requirement applies.

We adopt this approach under our State Constitution because

it is a reasonable accommodation of the competing interests

between the individual’s right to be free from unreasonable

searches and law enforcement’s investigatory demands. “[W]e

51
have not hesitated to find that our State Constitution provides

our citizens with greater rights . . . than those available

under the United States Constitution.” Lewis v. Harris, 188

N.J. 415, 456 (2006). On many occasions, “this Court has found

that the State Constitution provides greater protection against

unreasonable searches and seizures than the Fourth Amendment.”

State v. Earls, 214 N.J. 564, 584 (2013) (citing State v. Reid,

194 N.J. 386, 389 (2008) (recognizing reasonable expectation of

privacy in Internet subscriber information); State v.

McAllister, 184 N.J. 17, 19 (2005) (finding reasonable

expectation of privacy in bank records); State v. Mollica, 114

N.J. 329, 344-45 (1989) (finding privacy interest in hotel-room

telephone toll billing records); State v. Novembrino, 105 N.J.

95, 159 (1987) (declining to find good-faith exception to

exclusionary rule); State v. Hunt, 91 N.J. 338, 345 (1982)

(finding privacy interest in telephone toll billing records)).

We make that same finding here in hewing once again to the

Alston standard.

We also part from federal jurisprudence that allows a

police officer to conduct a warrantless search at headquarters

merely because he could have done so on the side of the road.

See Chambers, supra, 399 U.S. at 52, 90 S. Ct. at 1981-82, 26 L.

Ed. 2d at 428-29. “Whatever inherent exigency justifies a

warrantless search at the scene under the automobile exception

52
certainly cannot justify the failure to secure a warrant after

towing and impounding the car” at headquarters when it is

practicable to do so. Pena-Flores, supra, 198 N.J. at 39 n.1

(Albin, J., dissenting). Warrantless searches should not be

based on fake exigencies. Therefore, under Article I, Paragraph

7 of the New Jersey Constitution, we limit the automobile

exception to on-scene warrantless searches.9

IX.

Today’s decision is a new rule of law that we apply purely

prospectively because to do otherwise would be unfair and

potentially offend constitutional principles that bar the

imposition of an “ex post facto law.” U.S. Const. art. I, § 10;

N.J. Const. art. IV, § 7, ¶ 3.

The United States Constitution and the New Jersey

Constitution both prohibit the State Legislature from passing an

“ex post facto law.” U.S. Const. art. I, § 10; N.J. Const. art.

IV, § 7, ¶ 3. The Ex Post Facto Clause applies equally to laws

that emanate from judicial decisions. Bouie v. Columbia, 378

U.S. 347, 353-54, 84 S. Ct. 1697, 1702, 12 L. Ed. 2d 894, 900

(1964) (“If a state legislature is barred by the Ex Post Facto

9 We do not suggest that under appropriate circumstances an
inventory of a car at headquarters cannot be undertaken pursuant
to State v. Slockbower, 79 N.J. 1 (1979), and State v. Ercolano,
79 N.J. 25 (1979), or that the police cannot undertake a search
based on a true exigency.
53
Clause from passing such a law, it must follow that a State

Supreme Court is barred by the Due Process Clause from achieving

precisely the same result by judicial construction.”).

The Ex Post Facto Clause proscribes “[e]very law that

alters the legal rules of evidence, and receives less, or

different, testimony, than the law required at the time of the

commission of the offence, in order to convict the offender.

All these, and similar laws, are manifestly unjust and

oppressive.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390-91, 1 L.

Ed. 648, 650 (1798). “Every law that takes away, or impairs,

rights vested, agreeably to existing laws, is retrospective, and

is generally unjust, and may be oppressive . . . .” Id. at 391,

1 L. Ed. at 650.

Under Pena-Flores, the applicable law at the time of the

motor-vehicle stop in this case, the police officer who arrested

defendant on suspicion of driving while intoxicated did not have

exigent circumstances to search the car for opened bottles of

alcohol, according to the factual findings of the trial court,

which were affirmed by the Appellate Division. We must defer to

those findings because they are supported by sufficient credible

evidence in the record. See State v. Elders, 192 N.J. 224, 243-

44 (2007). We acknowledge that a different outcome might be

reached under the Alston standard. However, because Alston is a

new rule of law applied prospectively we need not address that

54
issue.

X.

For the reasons expressed, the exigent-circumstances test

in Cooke and Pena-Flores no longer applies. We return to the

standard set forth in Alston for warrantless searches of

automobiles based on probable cause. Going forward, searches on

the roadway based on probable cause arising from unforeseeable

and spontaneous circumstances are permissible. However, when

vehicles are towed and impounded, absent some exigency, a

warrant must be secured.

This decision is a new rule of law and will be given

prospective application from the date of this opinion. For

purposes of this appeal, Pena-Flores is the governing law.

Accordingly, we affirm the judgment of the Appellate Division,

which upheld the suppression of evidence in this case. Though

it does not change the outcome, we add that the Appellate

Division erred in addressing the validity of the motor-vehicle

stop because that issue was not raised before the trial court.

We remand for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, AND SOLOMON join in JUSTICE ALBIN’s opinion. JUSTICE
LaVECCHIA filed a separate, dissenting opinion, in which JUDGE
CUFF (temporarily assigned) joins.

55
 SUPREME COURT OF NEW JERSEY
A-9 September Term 2014
074468

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM L. WITT,

Defendant-Respondent.

JUSTICE LaVECCHIA, dissenting.

Persistence has paid off.

This is not the first time that the State has sought to

have the decision in State v. Pena-Flores, 198 N.J. 6 (2009),

revisited and overturned. Pena-Flores reaffirmed State v.

Cooke, 163 N.J. 657 (2000), which held that our state

constitutional law requires that exigency remain part of the

analysis when reviewing law enforcement’s purported

justification for searching a car in New Jersey without a

warrant authorized by a neutral magistrate. Both cases held

that exigency is a necessary component for a warrantless search

of a car stopped roadside anywhere in New Jersey -- in the

suburbs, on a city street, in a parking lot, or on the highways

and rural byways of New Jersey. The State does not want to have

to show exigency. It wants a relatively automatic exception to

1
the general warrant requirement when it comes to cars, so long

as the police encounter leading to the search is spontaneous and

unforeseen. But that argument was rejected in both Pena-Flores

and Cooke. Hence this persistence in having those decisions

revisited.

The State brought petitions for certification raising the

issue several times. The issue was certified as an appeal for

the State in State v. Deshazo, 208 N.J. 370 (2011), and again in

State v. Crooms, 208 N.J. 371 (2011). Those appeals were

consolidated with the State’s appeal in State v. Shannon, 208

N.J. 381 (2011), and they were dismissed, collectively, as

improvidently granted in an Order carrying a lead caption from

State v. Shannon, 210 N.J. 225 (2012).

Our Order in Shannon reminded the State of its burden to

show special justification when seeking to upend settled law.

Id. at 226-27. We found no support in the Shannon record for

the special-justification finding essential for the Court to

consider departing from standing precedent. Id. at 227. We

took the remarkable step in Shannon of identifying the type of

record that the State would have to present to support its

requested overturning of decided case law protective of

citizens’ constitutional right to be free from warrantless

searches of their vehicles. Id. at 227-28.

2
 Now the State, through the Attorney General, is back again

asking that Pena-Flores be overturned. I still find no special

justification to support the dramatic action the State would

have this Court take. Let me be clear as to what the State

seeks and what I decline to do: I would not overturn Pena-

Flores and Cooke and the three decades of precedent on which

those decisions rely.

The Court’s decision today represents a radical change in

our jurisprudence. It lessens the protection from warrantless

searches of automobiles that New Jersey historically has

provided.

The majority adopts an automobile exception that rejects

the need to show that exigency makes impracticable obtaining a

warrant issued by a neutral magistrate. The majority says that

determining exigency is just too difficult -- notwithstanding

that police frequently are called on to make exigency

determinations in search settings1 -- and decrees that there no

longer will be any requirement of demonstrating exigency for

1 See, e.g., State v. Reece, ___ N.J. ___, ___-___ (2015) (slip
op. at 17-19) (noting exigency required for application of
emergency-aid doctrine); State v. Walker, 213 N.J. 281, 295-98
(2013) (noting exigent circumstances justifying warrantless
arrest); State v. Edmonds, 211 N.J. 117, 130-41 (2012)
(emphasizing need for exigency showing in community caretaking
cases).

3
roadside searches of stopped vehicles occurring anywhere in the

State of New Jersey. By eliminating the exigency requirement,

the majority mimics the federal standard -- a question we were

forced to confront in Cooke and which we as a Court rejected as

constitutionally insufficient in this State.

The State has not won because it has proved special

justification. It has failed in that showing. Indeed, the

State’s argument demonstrates seeming recognition of that

failure by shifting from attempting to prove that obtaining

telephonic warrants is impracticable to a new worry about a

self-created “problem” associated with an increase in roadside

consent searches. Instead of asking people for consent, the

Attorney General wants this Court to simply allow searches of

cars roadside based on an officer’s unreviewed belief that

probable cause exists. Further, although the State can create a

program under which troopers on the road wear body cameras,2 it

for some reason cannot obtain telephonic warrants, despite the

2 See Samantha Marcus, Body Cams Coming to a Cop Near You as N.J.
Pledges Millions to Equip Officers, NJ.com (July 28, 2015),
http://www.nj.com/politics/index.ssf/2015/07/body_cams_coming_to
_a_cop_near_you_as_nj_pledges_millions_to_equip_officers.html;
Office of the Attorney General, Attorney General Law Enforcement
Directive No. 2015-1 (July 28, 2015), available at
http://www.state.nj.us/lps/dcj/agguide/directives/2015-
1_BWC.pdf.

4
fact that telephonic warrants are used in many other settings.

And a majority of our present Court now accepts those arguments.

This is not a proud day in the history of this Court.

Through perseverance in seeking the reversal of a disliked

decision with which the State made desultory, if any, effort 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.

Ironically, the majority takes this step at a time when

federal jurisprudence is veering away from any per se categories

of assumed exigency. The arc of history may prove embarrassing

indeed for my colleagues in the majority. I must respectfully

and vigorously dissent. In my view, stare decisis should

prevail.

I.

Stare decisis is the presumed course because it “ensure[s]

that the law will not merely change erratically, but will

develop in a principled and intelligible fashion[,] . . . [and

because it] permits society to presume that bedrock principles

are founded in the law rather than in the proclivities of

individuals.” Vasquez v. Hillery, 474 U.S. 254, 265, 106 S. Ct.

617, 624, 88 L. Ed. 2d 598, 610 (1986). “Stare decisis ‘carries

such persuasive force that we have always required a departure

5
from precedent to be supported by some special justification.’”

Luchejko v. City of Hoboken, 207 N.J. 191, 208 (2011) (quoting

State v. Brown, 190 N.J. 144, 157 (2007)). When determining

whether stare decisis must yield, relevant considerations

include “whether the prior decision is unsound in principle[]

[or] unworkable in practice.” Shannon, supra, 210 N.J. at 227

(citation omitted).

As to the first consideration, the majority fashions a

revisionist view of prior law to conclude that Pena-Flores and

Cooke were unsound in principle. The majority’s sweeping review

of that prior jurisprudence is unsurprising; its outline was set

forth in the dissent to Pena-Flores and became the State’s

mantra. That drumbeat to undo decades of case law has led to

the crescendo of reversal accomplished today. However, the

history of our jurisprudence requires another, more discerning

look to fully appreciate what the majority does here. Thus, I

will turn first to the assertion that Cooke, and necessarily

Pena-Flores, are “unsound in principle.” Second, I will address

the State’s failure to carry its burden to demonstrate that our

current law is “unworkable in practice.”

II.
In Cooke, this Court dealt directly with the question of

the role of exigency in automobile searches –- a question this

Court was required to answer following the United States Supreme

6
Court’s decision in Pennsylvania v. Labron, 518 U.S. 938, 116 S.

Ct. 2485, 135 L. Ed. 2d 1031 (1996) (per curiam). In Labron,

the Court rejected an interpretation of the Fourth Amendment

that would necessitate a demonstration of the presence of

exigent circumstances before officers conducted an automobile

search under the federal automobile exception to the general

warrant requirement. Id. at 938-40, 116 S. Ct. at 2486, 135 L.

Ed. 2d at 1035-36. The Supreme Court held that “[i]f a car is

readily mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment . . . permits police to search

the vehicle without more.” Id. at 940, 116 S. Ct. at 2487, 135

L. Ed. 2d at 1036 (citation omitted); see also Maryland v.

Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d

442, 445 (1999) (per curiam) (confirming that “the ‘automobile

exception’ has no separate exigency requirement”).

“In view of those recent federal holdings,” this Court said

in Cooke, supra, that we were forced to “decide whether the

automobile exception requires a finding of exigent circumstances

under the New Jersey Constitution.” 163 N.J. at 666 (emphasis

added). Based on our jurisprudence, we answered that question

in the affirmative; for purposes of our own state constitutional

analysis, we rejected adoption of the Labron Court’s elimination

of an exigent-circumstances component under the federal

automobile exception. Id. at 670.

7
 In reaching that decision, this Court noted that it “has

repeatedly looked to exigent circumstances to justify

warrantless automobile searches.” Id. at 667 (citing State v.

Colvin, 123 N.J. 428, 429 (1991); State v. Esteves, 93 N.J. 498,

504 (1983); State v. Alston, 88 N.J. 211, 233 (1981); State v.

Martin, 87 N.J. 561, 569 (1981); State v. Patino, 83 N.J. 1, 9

(1980); State v. LaPorte, 62 N.J. 312, 316 (1973)). To

substantiate that statement, the Court provided a detailed

discussion of three cases: “In prior cases, such as Alston,

Martin, and LaPorte, we held that the warrantless automobile

searches were reasonable only because they were supported by

probable cause and exigent or emergent circumstances.” Id. at

668 (emphasis added).

Alston, supra, involved police pursuit of a speeding

vehicle during which the officers noticed that the vehicle’s

occupants were acting furtively in an apparent attempt to

conceal something. 88 N.J. at 216. Once stopped, police

requested credentials. Ibid. When one occupant opened the

glove compartment to retrieve those credentials, police observed

shotgun ammunition. Ibid. The vehicle’s occupants were

instructed to exit the vehicle and were frisked, but no weapons

were found on them. Ibid. However, police observed a bag

protruding from underneath the front passenger seat, concealing

what the detective determined to be a shotgun. Id. at 216-17.

8
After the suspects were arrested based on the shotgun and

ammunition already found, a further search yielded two

additional weapons. Id. at 217. This Court upheld the extended

search, “find[ing] that under the circumstances of th[e] case

the detectives had probable cause to conduct the search of the

passenger compartment that revealed the two [additional

weapons],” id. at 232, and that “the exigent circumstances that

justify the invocation of the automobile exception are the

unforeseeability and spontaneity of the circumstances giving

rise to probable cause and the inherent mobility of the

automobile stopped on the highway,” id. at 233 (citation

omitted).

As the Cooke Court emphasized, “[w]e upheld the search [in

Alston] because the events leading up to the search were

spontaneous and unforeseeable, and posed a potential threat to

officer safety. Thus, there were exigent circumstances to

justify the warrantless search.” Cooke, supra, 163 N.J. at 668

(emphasis added) (internal citation omitted) (citing Alston,

supra, 88 N.J. at 234).

In Martin, supra, decided the same day as Alston, our Court

upheld the warrantless search of a vehicle at a police station.

87 N.J. at 570-71. In that case, officers were investigating a

“freshly-committed armed robbery” and were provided with a

description of an automobile believed to be operated by the

9
perpetrators of that robbery. See id. at 563. Officers located

a vehicle matching the given description, conducted a brief

search and credentials check, and allowed the car to proceed on

its way. Id. at 564-65. However, at supervisor direction,

officers re-located the now-unoccupied vehicle in a housing

project parking lot. Id. at 565. The vehicle was identified by

two witnesses as the vehicle associated with the armed robbery

and was brought to the police station and searched, revealing

incriminating evidence of the robbery under investigation.

Ibid. In finding the warrantless search constitutionally

permissible, and that it would have been dangerous for the

officers to have conducted it at the parking lot where the

vehicle was found, this Court noted:

The occupants of the car, the suspected
robbers, were still at large. Because the
police had stopped the car, the occupants were
alerted that they might have been suspected of
involvement in the armed robbery. They might
have returned at any moment to move the car or
remove the car’s contents. In addition, the
officers had reason to believe that the
occupants of the station wagon were not only
alerted but also armed and dangerous. The
illumination in the parking lot where the
vehicle was discovered at that early morning
hour was dim at best. In view of the
possibility of the suspects’ return to the
car, “[a] careful search at that point was
impractical and perhaps not safe for the
officers . . . .”

[Id. at 569-70 (alteration in original)
(citations omitted).]

10
The Court also emphasized the ongoing nature of the

investigation of the nearby armed robbery, which heightened the

level of exigency, noting that it created “an urgent, immediate

need for the police to ascertain whether the car contained

evidence of the armed robbery, before the suspects had an

opportunity to leave the area or to destroy or dispose of other

evidence.” Id. at 570 (citation omitted).

In Cooke, supra, the Court quoted in full the above passage

from Martin, preceding that quote with the following: “Finding

exigent circumstances, we upheld the warrantless search in

Martin.” 163 N.J. at 669 (emphasis added). The Cooke Court

also highlighted the “‘urgent, immediate need’” identified by

the Martin Court. Ibid. (quoting Martin, supra, 87 N.J. at

570).

In LaPorte, supra, the defendant contended that the

warrantless search of his automobile at police headquarters,

following his arrest for armed robbery, was illegal. 62 N.J. at

316. The Court rejected the defendant’s argument, specifically

noting that the “vehicle was mobile,” that “[h]ad the police not

seized [the vehicle] it might have been moved and whatever

evidence it contained lost,” that the defendant’s “ex-wife had a

duplicate key to the car and drove it quite a bit,” and that “it

was not practicable to secure a warrant.” Id. at 317.

According to the Cooke Court, “the circumstances [in LaPorte]

11
made it impracticable for the police to procure a search warrant

and immediate action was necessary.” Cooke, supra, 163 N.J. at

670 (citing LaPorte, supra, 62 N.J. at 316).

In discussing each of those cases -- Alston, Martin, and

LaPorte -- the unanimous Cooke Court pointed out the factual

features that presented exigency: reasons associated with

either police safety or prevention of loss or destruction of

evidence. Id. at 668, 669, 670. Such considerations were

highlighted as essential parts of this Court’s past holdings

supporting warrantless searches of automobiles. See ibid.

Following its review of those as well as other past

decisions,3 the Court in Cooke stated:

In view of our unwavering precedent and
the important rights at stake, we see no need
to modify our jurisprudence. Stated
differently, the State has provided no
compelling basis for us to curtail or
eliminate those standards that for decades
have served the criminal justice system, and
served it well, balancing constitutional
guarantees against the need for effective law
enforcement. . . .

3 Included in that discussion was Colvin, supra, 123 N.J. 428.
The majority diminishes Colvin by characterizing it as a
decision “primarily based on pure exigent circumstances,” ante
at ___ (slip op. at 26), even while acknowledging that the
Colvin Court “introduced the issue as one that ‘concerns the
scope of the automobile exception,’” ante at ___ (slip op. at
25) (quoting Colvin, supra, 123 N.J. at 429) (internal quotation
marks omitted). Contrary to the majority’s portrayal, Colvin is
in line with our past precedent and its analysis consistent with
our requirement that exigent circumstances must be present to
apply the automobile exception in New Jersey.

12
 [T]he lessened privacy expectation is one
factor, which, when combined with the
existence of probable cause and the overall
exigency of the situation, may justify [a]
warrantless search.

[Id. at 670 (emphasis added) (citations
omitted).]

Then, in Pena-Flores, supra, this Court “reaffirm[ed] our

longstanding precedent that permits an automobile search without

a warrant only in cases in which the police have both probable

cause to believe that the vehicle contains evidence and exigent

circumstances that would justify dispensing with the warrant

requirement.” 198 N.J. at 11. The Pena-Flores Court again

engaged in a detailed discussion of the case law leading up to

Cooke, id. at 20-24 -- which the Pena-Flores Court reminded us

“affirmed that the exigency inquiry has always been a part of

New Jersey’s automobile exception,” id. at 25-26 (citing Cooke,

supra, 163 N.J. at 667, 670-71) –- and emphasized how this

Court, unlike the federal courts, has always assessed exigency

on a case-by-case basis, rather than solely on the inherent

mobility of the automobile, id. at 21.

The Pena-Flores Court highlighted LaPorte as the first

indication that, unlike the developing federal law, specific

facts create exigency, not the mere mobility of the vehicle.

Ibid. It then discussed Alston, noting that the Court’s holding

in that case “essentially added a requirement that is not part

13
of the federal automobile standard,” namely, that “the stop and

search of the vehicle cannot be pre-planned -- it must be

unforeseen and spontaneous.” Ibid. (citing Alston, supra, 88

N.J. at 233-34). However, that language did not supplant the

separate exigency aspects of the analysis. Discussing the

Martin Court’s exposition of facts that created the exigency in

that case, the Pena-Flores majority stated: “Obviously, there

would have been no need to detail the facts and circumstances

that created the exigency had the mere mobility of the vehicle

sufficed.” Id. at 22. The Pena-Flores Court noted that

“together Alston and Martin rejected the federal standard by

declaring (1) that the stop had to be unforeseen and spontaneous

and (2) that exigency must be assessed based on the particular

facts and circumstances of the case, and does not automatically

flow from the mobility of the vehicle.” Ibid. (emphasis added).

Following a discussion of Cooke and the consistency of our

past precedent, the Pena-Flores Court held that “the warrantless

search of an automobile in New Jersey is permissible where (1)

the stop is unexpected; (2) the police have probable cause to

believe that the vehicle contains contraband or evidence of a

crime; and (3) exigent circumstances exist under which it is

impracticable to obtain a warrant.” Id. at 28 (citations

omitted). The Court then provided a list of examples of

14
considerations that may be pertinent when assessing exigent

circumstances. Id. at 29.

Pena-Flores and Cooke are soundly reasoned and fully

supported decisions. Their reasoning tracks carefully the

factual bases and legal reasoning for the holdings of earlier

precedent. For the majority to pronounce them unsound in

principle, ante at ___ (slip op. at 50), is unfair. That

pronouncement reflects only the majority’s own contrary view of

earlier law. In particular, I note the majority’s canonization

of Alston as the preeminent word on the automobile exception in

New Jersey. The majority has distilled Alston to a single-

sentence standard that conveniently ignores Alston’s own

acknowledgment (and Pena-Flores’s underscoring) of the presence

of exigency in the circumstances, independent of the spontaneity

and unforeseen nature of the roadside encounter. The Pena-

Flores dissent was not persuasive on this point. Its repetition

in the majority’s opinion does not enhance it.

Indeed, the majority does not deal squarely with Pena-

Flores either, mischaracterizing it as having established an

unworkable multi-factor test, ante at ___, ___ (slip op. at 3,

46), notwithstanding the Pena-Flores Court’s immediate and solid

rejection of that same assertion when it first was advanced as a

dissenter’s complaint, see Pena-Flores, supra, 198 N.J. at 29

n.6. That point, and others, require separate attention in my

15
response to the second reason advanced by the majority for

overturning both Pena-Flores and Cooke –- namely, that they are

unworkable in practice. However, let it be said that I dissent

from the reasoning and holding of the majority that Pena-Flores

and Cooke are unsound in principle.

III.

The State contends that Pena-Flores is “unworkable in

practice” for two principal reasons: first, that a post-Pena-

Flores pilot program has exposed practical difficulties with

roadside telephonic search warrants; and second, that Pena-

Flores has produced the “unintended negative consequences” of

increasing consent-based searches and expanding police

discretion. In reality, however, the so-called evidence of the

practical difficulties with obtaining roadside telephonic

warrants is derived from a single six-month pilot program that

ended three years ago and whose results are arguably promising,

and at worst inconclusive. Further, the State’s arguments

regarding unintended and supposedly negative consequences of

Pena-Flores are comprised of speculation and leaps in logic, and

are not borne out by the State’s own data. In sum, the State

falls far short of demonstrating its heavy burden that Pena-

Flores is unworkable in practice and that stare decisis must

yield.

A.

16
 In Pena-Flores, supra, the Court recognized a need for “an

efficient and speedy electronic and telephonic warrant procedure

that will be available to [police] on the scene[,] . . . obviate

the need for difficult exigency assessments[,] and . . .

guarantee our citizens the protections that the warrant

requirement affords -- an evaluation of probable cause by a

neutral judicial officer.” 198 N.J. at 36. To that end, the

Pena-Flores Court ordered the creation of a task force “to

address the practical issues involved in obtaining telephonic

and electronic warrants.” Id. at 35. The task force was to

“study . . . telephonic and electronic warrant procedures and

make practical suggestions to ensure that technology becomes a

vibrant part of our process,” including “recommendations for

uniform procedures (including forms), equipment, and training,

along with an evaluation of the scheme once it is underway.”

Id. at 35-36. The resulting Supreme Court Special Committee on

Telephonic and Electronic Search Warrants (Special Committee)

was formed and its findings culminated in a January 2010 report.

Report of the Supreme Court Special Committee on Telephonic &

Electronic Search Warrants (Jan. 22, 2010) [hereinafter Special

Committee Report], available at

http://www.judiciary.state.nj.us/notices/2010/n100520b.pdf. The

Special Committee Report made detailed recommendations in

respect of implementing a telephonic warrant program in New

17
Jersey and set a goal of “no more than [forty-five] minutes,

with an ideal goal of [thirty] minutes” for completing the

telephonic warrant process. Id. at 19.

To test the viability of the Special Committee’s

recommendations, as well as the potential volume of telephonic

warrant requests, the Administrative Office of the Courts

launched a six-month telephonic warrant pilot program in the

Burlington Vicinage, which ran from September 6, 2011, through

March 6, 2012. Superior Court of New Jersey, Burlington

Vicinage, Telephonic Search Warrants (Pena-Flores) Pilot Program

3-4, 6 (2012) [hereinafter Pilot Program]. The State argues

that the results of that pilot program demonstrate that Pena-

Flores’s promotion of telephonic and electronic warrants is

unworkable in practice. Specifically, the State points to the

fact that the average amount of time it took to obtain a

telephonic warrant during the pilot program was fifty-nine

minutes, which exceeds the Special Committee Report’s goal of a

maximum of forty-five minutes. (Citing Pilot Program, supra, at

6). On average, thirty-two of those minutes were the time it

took for a police officer to connect with a judge on the phone,

a process that was facilitated by the county prosecutor’s office

via a central communications dispatch system. Pilot Program,

supra, at 6. Focusing on that length of time in particular, the

State asserts that the pilot program’s failure to meet its

18
target time is attributable to “the human components of any

telephonic warrant system,” especially the fact that “judges in

this State are not like customer service representatives . . .

they are not standing by 24/7 to take calls from police and

prosecutors.”

Although the fifty-nine minute average time to obtain a

warrant exceeded the Special Committee’s outer-limit target by

fourteen minutes, that fact does not lead inevitably to the

conclusion that a telephonic warrant program in New Jersey is

impracticable. The Burlington Vicinage pilot program was just

that: a pilot program, one goal of which was to test the

initial recommendations of the Special Committee Report. It was

not a test by which the viability of telephonic warrants in New

Jersey should decidedly pass or fail. See Special Committee

Report, supra, at iv (“If the number of requests for telephonic

search warrants exceeds the ability of the current emergent duty

system to handle them, another system should be implemented as

quickly as possible.”). By the State’s analysis, because the

precise approach taken three years ago in a six-month pilot

program exceeded its target time by fourteen minutes, telephonic

warrants are impracticable.4 That line of thinking ignores the

4 The majority makes a point of noting that the average time for
Troop C of the State Police to procure a telephonic warrant was
between 1.5 and two hours. Ante at ___ (slip op. at 35).
However, that statistic is the average only for Troop C, and was

19
fact that “the human components of any telephonic warrant

system” are not static, but rather a function of the practices

and procedures that human beings design and implement, as well

as the will and energy they put into doing so.

Properly viewed, the pilot program and its results are a

mere jumping off point for building a workable telephonic or

electronic warrant system, or at least trying in earnest to do

so. The State could have attempted to improve upon the pilot

program’s approach in the three years since it concluded, but,

significantly, it points to no evidence of having done so. The

State also presents no evidence that improvement on the average

time to obtain a telephonic warrant was impossible or unlikely,5

or that there was no way to adjust the pilot program to make it

more convenient for all parties involved. To the contrary, it

would seem that ongoing developments in technology make advances

in efficiency more and more likely.

based on a universe of sixteen applications for telephonic
warrants. Pilot Program, supra, at 10. It is hardly
representative of the whole. The average time for the
Burlington pilot program, based on a total of forty-two
applications, six of which were from the State Police, was
fifty-nine minutes. Id. at 6.

5 Indeed the ACLU asserts that improvement was occurring; during
the two months after the pilot program technically ended, but
for which data was collected, the average time to obtain a
telephonic warrant had decreased to forty-three minutes.

20
 The fact that New Jersey already has functioning systems to

telephonically and electronically apply for and obtain temporary

restraining orders (TROs) in several settings is strong evidence

that telephonic or electronic warrants can work where there is a

will to make them work. For example, as the ACLU points out,

the judiciary and law enforcement have implemented an electronic

filing system for TROs to protect victims of domestic violence,

which “allows police to fill out an electronic form,

teleconference with the judge, and print out the approved TRO in

moments.” New Jersey Courts Annual Report 2007-2008, at 1, 17,

available at

http://www.judiciary.state.nj.us/pressrel/ARNJCourts08.pdf; see

also R. 5:7A(b) (providing that domestic violence TRO may be

issued “upon sworn oral testimony . . . communicated to the

judge by telephone, radio or other means of electronic

communication”). Notably, “[o]n weekends, holidays and other

times when the court is closed,” Family Part and municipal court

judges “shall be assigned to accept complaints and issue

emergency . . . [TROs].” N.J.S.A. 2C:25-28(a). Similarly, “[a]

judge may issue an arrest warrant on sworn oral testimony

communicated through telephone, radio or other means of

electronic communication.” R. 3:2-3(b). Restraining orders for

certain criminal offenders may also be issued through such

telephonic or electronic communication. N.J.S.A. 2C:35-5.7(a).

21
 That other states have implemented telephonic and

electronic warrant programs is further evidence that such a feat

is possible where the will to do so exists. See Missouri v.

McNeely, ___ U.S., ___, ___, 133 S. Ct. 1552, 1562, 185 L. Ed.

2d 696, 708 (2013) (“Well over a majority of States allow police

officers or prosecutors to apply for search warrants remotely

through various means, including telephonic or radio

communication, electronic communication such as e-mail, and

video conferencing.”). In Utah, with the introduction of an “e-

warrant” system, “police officers can process a search warrant

in five to 15 minutes. The police officer begins by texting the

search warrant request directly to the judge on call who then

reviews the search warrant online, electronically signs the

warrant, and emails it back to the officer to serve.” State of

Utah Judiciary, 2014 Annual Report to the Community 8 (2014),

available at http://www.utcourts.gov/annualreport/2014-

CourtsAnnual.pdf; see also Jason Bergreen, Judges, Cops Dote on

Quicker Warrant System, Salt Lake Trib. (Dec. 29, 2008, 11:00

AM),

http://archive.sltrib.com/article.php?id=11309849&itype=NGPSID.

In Missouri, 2004 and 2010 amendments to that state’s

“search warrant statute authoriz[e] search warrant applications

to be made by electronic means and with electronic signatures[,]

permit[ting] e-mail search warrants.” H. Morley Swingle & Lane

22
P. Thomasson, Beam Me Up: Upgrading Search Warrants with

Technology, 69 J. Mo. B. 16, 19 (2013). As of June 2012,

thirteen percent of Missouri prosecutors’ offices had obtained

search warrants via e-mail, and five more offices (4.3 percent)

“had a process in place” to begin doing the same. Ibid.

Missouri counties have incorporated “electronic means” into the

warrant process in various and creative ways. Ibid. In

Christian County, Missouri, a judge and prosecutor use iPads to

sign e-mailed warrants using “a 99-cent signature application.”

Ibid. “In Henry County, a streamlined process has been

established” wherein an officer can e-mail a warrant application

and affidavit to a prosecutor, who can sign it with a signature

application and forward it to a judge. Id. at 20. The judge

then can sign it using an application and e-mail it back to the

officer, whose patrol car is equipped with a printer. Ibid.

Finally, as of 2012, Platte County had a plan “to use Skype with

its electronic search warrant process, so the judge, prosecutor

and law enforcement officer can see each other by video

conferencing while the warrants are being obtained.” Ibid.

(footnote omitted).

Those efforts, and successes, in other states –- as well as

this State’s implementation of electronic and telephonic

restraining orders and arrest warrants -- demonstrate that the

results of a single six-month pilot program using telephonic

23
warrants cannot fairly be viewed as conclusive evidence of the

impracticability of a telephonic or electronic search warrant

program in New Jersey. That is particularly so given that the

pilot program took place in 2011-2012. Technology already has

evolved since then, and the efforts of other states indicate

that there were, and are, many more methods to try for quickly

procuring a warrant, including the use of e-mail, iPads and

other mobile devices, and electronic signature applications.

Technology cannot solve every issue, but consistent, concerted

commitment to maximizing both technological and human resources

can go a long way. A little creativity and dedication to

resolving the challenges encountered during the pilot program

may indeed have gone a long way. But the State’s seeming lack

of resolve to make telephonic warrants a success cannot and does

not prove their impracticability. As the ACLU aptly notes, the

will to develop a workable telephonic or electronic warrant

program must be derived from Article 1, Paragraph 7 of the New

Jersey Constitution, and not from individual governmental

actors.6

6 The State adds one more point to its argument that telephonic
warrants are unworkable. According to the State, the pilot
program “by its very design, reveals why telephonic warrants are
not likely to emerge as a viable replacement for the automobile
exception.” The State contends that “[a]ll of the participants
in the pilot program understood that police officers would
continue their post-Pena-Flores practice of requesting motorists
to consent to a search” prior to trying to obtain a telephonic

24
 B.

Seemingly recognizing that the results of the pilot program

do not prove that telephonic warrants are impracticable –- a

burden that the State must bear to launch a frontal attack on

precedent -- the State turns to an alternative ground on which

to conclude that Pena-Flores is unworkable. It asserts that

Pena-Flores has produced the “unintended negative consequence”

of increasing consent-based searches of automobiles. As proof

that consent-based searches have increased as a result of Pena-

Flores, the State points to a study conducted by the Office of

Law Enforcement Professional Standards (OLEPS) on the effects of

Pena-Flores. Office of Law Enforcement Professional Standards,

The Effects of Pena-Flores on Municipal Police Departments (Oct.

warrant. Further, the State’s brief asserts that “participants
recognized that the number of telephonic-warrant applications
might overwhelm judicial and prosecutorial resources unless most
cases . . . [we]re screened out by means of the consent-to-
search doctrine.” Thus, according to the State, the increase in
consent searches, attributable to pilot program participants’
decision to ask for motorists’ consent before applying for a
warrant, demonstrates that telephonic warrants are unfeasible.
There is an undeniable circularity to that argument. If the
number of telephonic warrant requests would have overwhelmed the
system, one goal of the pilot program was to obtain data
demonstrating that possibility. However, participants’
preconceived notion that telephonic warrants were unworkable
(and the resulting decision to rely on asking motorists for
consent to search) does not prove that such warrants are in fact
unworkable. It proves only that program participants had a
preconceived belief that a telephonic warrant program was
impracticable.

25
2012) [hereinafter 2012 OLEPS study], available at

http://www.nj.gov/oag/oleps/pdfs/OLEPS-Report-Effects-of-Pena-

Flores-on-Mun-PDs-10.12.pdf. The study collected data from

motor vehicle stops from a sampling of municipal police

departments throughout the state –- 103 of the approximately 550

New Jersey municipal police departments –- as well as from the

State Police during the month of April from 2008 (the year

before the February 2009 Pena-Flores decision) through 2012.

Id. at 2, 6.

The 2012 OLEPS study reveals that consent-based automobile

searches increased in municipal police departments from a

reported ninety-six in April 2008 to 271 in April 2012, while

the overall number of stops remained relatively unchanged. Id.

at 9, 13. For the State Police, consent searches increased from

nineteen in April 2008 before Pena-Flores to ninety-five in

April 2009, just a few months after the Pena-Flores decision.

Ibid. That number steadily increased to 229 consent searches in

April 2011. Ibid. The State highlights those increases in

consent-based searches and characterizes them as a negative

consequence of Pena-Flores. According to the State, the

increase in consent searches is a negative effect because asking

for consent to search may be coercive when probable cause is “so

strong and obvious . . . as to undermine the voluntariness of

26
consent,” and when motorists feel that they will be subjected to

prolonged detention unless they consent.

Although the voluntariness of consent is undoubtedly

paramount, based on the record currently before the Court, the

State’s argument on this front does not hold up. First, the

2012 OLEPS study itself characterizes consent-based searches as

“a relatively rare occurrence,” despite the numerical increase

in consent searches. 2012 OLEPS Study, supra, at 13. “Most

departments had a handful [of consent searches] in the months

selected for review.” Ibid. In fact, “conversations with local

law enforcement officers” indicated that “consent requests

[we]re not especially common,” a trend “the numbers reinforce.”

Id. at 14. Specifically, the 2012 OLEPS study found that

[g]iven that there were 103 departments in the
sample, on average there were only 1.07
consent searches granted per department for
April 2008, 1.30 for April 2009, 1.85 for
April 2010, 2.37 for April 2011, and 2.85 for
April 2012. The total number of granted
consent searches represents less than 1% of
the number of motor vehicle stops reported.
Consent requests then, do not occur with great
frequency for municipal departments or the
State Police.

[Ibid. (emphasis added).]

Importantly, a follow-up OLEPS study conducted in 2013

reiterated those findings and attributed an apparent increase in

consent searches from 2012 to 2013 mostly to mere changes in

reporting:

27
 While the number of granted consent to search
requests does increase by almost 100 stops
from April 2012 to April 2013, this increase
cannot be attributed to increased use in
consent requests. Instead, this increase is
more likely to, at least in part, be affected
by reporting rather than the true number of
events. As a result of the 2012 data request,
many departments improved their records of
motor vehicle stops, to facilitate such data
requests. Thus, while overall, there is a
steady, but small, increase in the number of
granted consent searches, the large increase
for 2013, is not likely a true reflection of
activity.

[Office of Law Enforcement Professional
Standards, Second Report: The Effects of
Pena-Flores on Municipal Police Departments
15 (Dec. 2013) (emphasis added), available at
http://www.nj.gov/lps/oleps/pdfs/OLEPS-
Report-Effects-of-Pena-Flores-on-Mun-PDs-
12.13.pdf.]

Second, the State does not demonstrate that the increase in

consent-based searches is actually a negative consequence of

Pena-Flores. Roadside consent searches of automobiles do not

present a constitutional dilemma when there is “reasonable and

articulable suspicion to believe that an errant motorist or

passenger has engaged in, or is about to engage in, criminal

activity,” State v. Carty, 170 N.J. 632, 647 (2002), and when

consent is given voluntarily, see State v. Johnson, 68 N.J. 349,

353-54 (1975). It is entirely appropriate for law enforcement

to simply ask a motorist for consent to search his or her car

when probable cause develops before resorting to trying to

obtain a warrant, telephonic or otherwise. Although courts must

28
always be vigilant to claims of coerced or involuntary consent,

the State has failed to produce any evidence that officers have

been obtaining consent coercively or that there is great risk of

such inappropriate behavior. In fact, at oral argument the

State expressly represented that none of the consent-based

searches recorded in the OLEPS study were found to be coercive

to its knowledge. The State’s argument based on alleged

negative aspects of consent searches is thus entirely

speculative, a point repeatedly confirmed upon close examination

of its discussion of that assertion in its briefs to this Court.

Specifically, the State’s briefs posit that a defendant

“may” challenge a consent-based search when probable cause is

strong, that a defendant “may” contend that “there was no

genuine option to refuse consent,” and that a defendant “may”

argue that consent was invalid based on fear of being detained

for a prolonged period of time. However, the State points to no

instances in which defendants have made such arguments, and it

cites no case where a post-Pena-Flores consent search has been

invalidated on such grounds. Nevertheless, the Court’s majority

grabs hold of that argument to support its conclusion that the

State has proven unworkability.

The majority focuses on the State’s –- again speculative –-

assertion that a motorist would feel pressure to consent at the

prospect of being detained for an inordinate amount of time.

29
Ante at ___ (slip op. at 45). However, it is not clear that the

current average of fifty-nine minutes from the Burlington pilot

program is an inordinate delay. Despite that voiced concern,

the State does not demonstrate any earnest efforts to improve

upon the results of the pilot program. Nor does the State

address how its “fears” are balanced by the fact that law

enforcement officials must inform people of their right to

refuse consent in order to carry the State’s burden of showing

that consent given was truly voluntary. Johnson, supra, 68 N.J.

at 353-54 (holding that essential element of voluntary consent

is “knowledge of the right to refuse consent”). Indeed, it is

notable that not a single privacy or civil liberties group

writes in support of the State’s position as amicus curiae. In

fact, the ACLU, writing in support of defendant, does not decry

the increase in consent searches following Pena-Flores as a

negative unintended consequence of that decision.

The majority relies on the State’s asserted concern for

motorists’ constitutional rights in the wake of an increase in

consent searches. However, that concern is suspect in light of

the fact that the State’s solution is to take away all

motorists’ ability to first choose to consent by instead giving

officers a nearly automatic right to search by way of a rote

automobile exception to the warrant requirement based on

unreviewed officer belief that probable cause exists. Instead

30
of instituting increased officer training on consent-search

procedures in order to prevent coercive situations –- a logical

and direct prophylactic measure against coercive consent

searches -- the State’s answer is to take away all choice from

motorists. This “remedy” belies concern for constitutional

rights and in fact scales back motorists’ constitutional

protections.

Although the majority posits that detention on the side of

road for an hour is, or at least debatably is, more intrusive

than a search of one’s vehicle, one wonders why individual

motorists should not be allowed to make that determination for

themselves. The rational response to the potentiality of

placing motorists in a coercive situation is to properly train

officers and to reduce or eliminate situational pressure to

consent by developing functional and efficient electronic and

telephonic warrant procedures so that motorists may comfortably

choose for themselves whether to insist on the constitutional

default -- a warrant approved by a neutral magistrate -- or

whether to waive that right.

Finally, a few words on the last two justifications

asserted in this record to overturn settled law on warrantless

roadside searches of automobiles. The State asserts that Pena-

Flores has had (or perhaps will have) the effect of increasing

“de-policing” and expanding police discretion. The State’s

31
arguments on those points are equally if not more speculative

than its arguments about the effects of consent-based searches.

As to the first, the State contends that when it is

impractical to get a warrant to search a car, police will

release motorists even though there is probable cause to search

their cars, resulting in “de-policing.” Although the 2012 OLEPS

Study states that “many departments indicated that in the face

of a denied consent, it was rare to apply for a search warrant,”

the Study posits that the failure to apply for a warrant could

have indicated de-policing or lack of probable cause. 2012

OLEPS Study, supra, at 16. The study contains only speculation

that de-policing was the motivating force behind an officer’s

decision not to apply for a warrant when a motorist denied

consent: “Rather than spend the several hours to apply for a

search warrant and tow a vehicle, officers may have been willing

to allow motorists to leave without further investigation.”

Ibid. (emphasis added). In the absence of any data or

statistics indicating that “de-policing” is in fact occurring,

such raw speculation is not a basis on which to alter motorists’

constitutional rights.

As to the second, it bears noting that the last point made

by the State in support of its claims -- that by “forcing

officers to decide whether it is worth the time and effort to

obtain a warrant, the Pena-Flores rule has unwittingly enlarged

32
the ambit of a patrol officer’s enforcement discretion” -- is

similarly without basis in fact. Perhaps, in this regard, the

State is merely latching onto the Pena-Flores dissent’s

mischaracterization of the examples of exigency, helpfully set

out in Cooke and in Pena-Flores, as a hard-and-fast multi-factor

test that is difficult to apply. See Pena-Flores, supra, 198

N.J. at 26-29, 29 (noting that “[l]egitimate considerations are

as varied as the possible scenarios surrounding an automobile

stop”); Cooke, supra, 163 N.J. at 668-71. The dissent in Pena-

Flores was called out by the Pena-Flores majority for its

inaccurate and misleading recasting of what the majority opinion

said. Pena-Flores, supra, 198 N.J. at 29 n.6 (explaining that

contrary to dissent’s characterization, majority did not

“establish a new ‘multi-factor test,’ but rather “merely

detailed, by way of example but not limitation, the various

factors that our prior cases have recognized as relevant to an

exigency analysis”). Sadly, the dissent then, and the State and

the majority now, persist in that mischaracterization.

The bull’s-eye that the Pena-Flores dissenters put on the

back of that decision has finally paid off –- not because of the

proof that the State has mustered in this record, but rather

from re-characterization of prior case law and lack of scrutiny

of the State’s evidence in alleged support of its practicality

argument. In my view, the majority’s analysis of the legal and

33
factual bases for overturning Pena-Flores and Cooke are woefully

inadequate. The State has not carried its burden to justify

overturning our state constitutional law governing warrantless

automobile searches and neither is the majority persuasive in

its analysis that the State has done so.

IV.

The majority’s conclusion represents, in essence, a retreat

to the federal standard for warrantless searches of an

automobile expressly rejected by the Court in Cooke.

Ironically, the majority’s step towards the federal standard

comes at a time when federal jurisprudence is deviating away

from any per se categories of assumed exigency. See, e.g.,

McNeely, supra, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d

696; Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed.

2d 485 (2009).

In Gant, supra, the United States Supreme Court rejected

the broad reading of its decision in New York v. Belton, 453

U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), that would

permit officers to conduct an automobile search incident to

arrest, irrespective of whether the area searched was within the

arrestee’s reach at the time of the search. 556 U.S. at 344,

129 S. Ct. at 1720, 173 L. Ed. 2d at 497. The Court noted that

“[c]onstruing Belton broadly to allow vehicle searches incident

to any arrest would serve no purpose except to provide a police

34
entitlement, and it is anathema to the Fourth Amendment to

permit a warrantless search on that basis.” Id. at 347, 129 S.

Ct. at 1721, 173 L. Ed. 2d at 499 (emphasis added).

In McNeely, supra, the United States Supreme Court ruled

that the dissipation of alcohol in the body, without more, did

not constitute exigency to justify a warrantless blood draw of a

drunk-driving suspect. ___ U.S. at ___, 133 S. Ct. at 1568, 185

L. Ed. 2d at 715. In doing so, the Court noted that

the Fourth Amendment will not tolerate
adoption of an overly broad categorical
approach that would dilute the warrant
requirement in a context where significant
privacy interests are at stake. Moreover, a
case-by-case approach is hardly unique within
our Fourth Amendment jurisprudence. Numerous
police actions are judged based on fact-
intensive, totality of the circumstances
analyses rather than according to categorical
rules, including in situations that are more
likely to require police officers to make
difficult split-second judgments.

[Id. at ___, 133 S. Ct. at 1564, 185 L. Ed.
2d at 710.]

Importantly, the McNeely Court noted that adoption of a

restrictive, categorical approach would ignore technological

changes in the expedition of obtaining warrants. Id. at ___-

___, 133 S. Ct. at 1561-63, 185 L. Ed. 2d at 708-09.

One can only wonder why the State and the majority of this

Court find it appropriate to turn from the progressive approach

35
historically taken in this State to privacy and constitutional

rights of motorists. I cannot join this backward step.

I respectfully dissent.

36
 SUPREME COURT OF NEW JERSEY

NO. A-9 SEPTEMBER TERM 2014
ON APPEAL FROM Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM L. WITT,

Defendant-Respondent.

DECIDED September 24, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY Justice LaVecchia
AFFIRM AND
CHECKLIST DISSENT
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 5 2