State of New Jersey v. Ladohn E. Courtney ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3844-22
STATE OF NEW JERSEY,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v.
February 23, 2024
LADOHN E. COURTNEY, APPELLATE DIVISION
ERIADNA V. MENTOR, and
TOMMIE S. NEWSOME,
Defendants-Respondents.
___________________________
Argued January 24, 2024 – Decided February 23, 2024
Before Judges Currier, Susswein and Vanek.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Union County,
Indictment Nos. 23-02-0084, 23-02-0085, 23-02-0086
and 23-02-0087.
Milton Samuel Leibowitz, Assistant Prosecutor, argued
the cause for appellant (William A. Daniel, Union
County Prosecutor, attorney; Milton Samuel Leibowitz,
of counsel and on the brief).
Peter Thomas Blum, Assistant Deputy Public Defender,
argued the cause for respondent Ladohn E. Courtney
(Joseph E. Krakora, Public Defender, attorney; Peter
Thomas Blum, of counsel and on the brief).
Ruth Elizabeth Hunter, Designated Counsel, argued the
cause for respondent Eriadna V. Mentor (Joseph E.
Krakora, Public Defender, attorney; Ruth Elizabeth
Hunter, on the brief).
Ehrlich, Petriello, Gudin, Plaza & Reed, PC, attorneys
for respondent Tommie S. Newsome, join in the briefs
of respondents Ladohn E. Courtney and Eriadna V.
Mentor.
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
Under Article 1, Paragraph 7 of the New Jersey Constitution—our State's
counterpart to the Fourth Amendment—police cannot conduct a search pursuant
to the automobile exception to the warrant requirement once a vehicle has been
towed away and impounded. State v. Witt, 223 N.J. 409, 448-49 (2015). This
appeal requires us to probe the scope and rationale of that restriction, presenting
the novel question of whether police may conduct a search under the automobile
exception when they are required to impound a vehicle pursuant to John's Law, 1
but the vehicle has yet to be removed from the scene of the stop.
1
John's Law, codified in N.J.S.A. 39:4-50.22 and -50.23, generally requires
police to impound a vehicle for at least twelve hours when the driver is arrested
for driving while intoxicated (DWI) or refuses to submit to a chemical breath
test.
A-3844-22
2
By leave granted, the State appeals from a June 29, 2023 Law Division
order suppressing a loaded handgun found during a warrantless, non-consensual
search of a vehicle that was pulled over for multiple traffic violations and erratic
driving. The driver was arrested for DWI. The trial court ruled that because the
vehicle was required to be impounded under John's Law, "[t]here was no
additional emergency or exigent circumstances that would have required a
search on the side of the road." The trial court thus concluded the officers were
required to obtain a search warrant even though the search occurred roadside.
After carefully reviewing the record in light of the plain language and
underlying rationale of our Supreme Court's pivotal decision in Witt, we reverse
the suppression order. So long as police satisfy the foundational requirements
of probable cause, spontaneity, and unforeseeability, the authority to conduct an
automobile-exception search lapses only after the vehicle has been removed to
a secure location, not in anticipation of such removal. We decline defendants'
request to create a new bright-line rule making vehicles subject to John's Law
categorically ineligible for an on-scene search under the automobile exception.
I.
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3
We discern the pertinent facts from the suppression hearing record. 2 On
the night of September 20, 2022, Cranford Police Officer Antonio Bellomo
observed a white Dodge Durango travelling westbound on North Avenue
towards the northbound ramp of the Garden State Parkway. The vehicle swerved
from the northernmost lane that accesses the ramp and came to an abrupt stop in
the right lane. The vehicle then crossed over the solid, white line and began
heading towards the southbound ramp of the Parkway. Before the vehicle
entered the ramp, Bellomo saw it swerving within the right lane of travel.
Bellomo initiated a motor vehicle stop. The vehicle travelled slowly on the
shoulder before coming to a complete stop.
Bellomo exited his patrol car and approached the passenger side of the
Durango. He smelled alcohol emanating from the vehicle's cabin. Bellomo
asked the driver, Tommie S. Newsome, 3 for his driver's license, registration, and
proof of insurance. Newsome provided his license and proof he rented the car
at Newark airport.
2
For purposes of determining the lawfulness of the warrantless search, the
relevant facts are not disputed in this appeal.
3
Newsome submitted a letter brief but did not participate in oral argument.
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4
While speaking to Newsome, Bellomo saw a half-empty bottle of cognac
on the passenger-side floor. He ordered Newsome out of the car and asked him
if he had anything to drink. Newsome said he had a drink at a restaurant.
Bellomo smelled alcohol on Newsome's breath. He administered sobriety tests,
which Newsome failed. Bellomo arrested Newsome for DWI.
Ladohn E. Courtney was in the rear passenger-side seat. Patrol Officer
Folinusz, who came to provide backup, saw Courtney was not wearing a
seatbelt. Folinusz ordered Courtney to present his driver's license. A warrant
check revealed an outstanding municipal court warrant. Courtney was placed
under arrest and issued a summons for not wearing a seatbelt.
Bellomo ordered the front-seat passenger, Eriadna V. Mentor, to step out
of the vehicle because it needed to be towed pursuant to John's Law. Bellomo
searched the vehicle while it was still on the side of the road and found a
handgun loaded with six rounds under the front passenger seat. After securing
the handgun, Bellomo continued searching the vehicle and found another open
bottle of cognac.
Courtney, Newsome, and Mentor were charged by indictment with
unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1).
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They were also charged with certain persons not to have a firearm based on prior
convictions, N.J.S.A. 2C:39-7(b)(1).
Newsome filed a motion to suppress the handgun, which Courtney and
Mentor joined. Following a suppression hearing, supplemental briefing, and
oral argument, the trial court granted the motion to suppress. The court issued
an oral ruling, concluding:
The [c]ourt believes that based on this … particular set
of factual circumstances that has been presented, from
the moment that Mr. Newsome was being arrested for
[DWI] John's Law kicked in, and as a result of John's
Law kicking in, [t]he [c]ourt reads [State v. Witt] to
include when vehicles are towed and impounded. So it
was immediately apparent at that moment, upon his
removal from the vehicle, the smell of alcoholic
beverages emanating from … Mr. Newsome, that was
detected, his failure of the … balancing test, and then
his subsequent [.18 blood alcohol test level] when taken
to the station, when he was arrested for [DWI,] at that
point John's Law was triggered …. [I]t is the opinion of
[t]he [c]ourt that because John's Law was triggered
[and] when vehicles are towed and impounded—and
I'm expanding upon [Witt] in this respect, by just
adding the following—when you know a vehicle is
going to be towed and impounded, absent some
exigency, a warrant must be secured …. I don't even
need to get there. When vehicles are towed and
impounded that should have flipped the switch that
required a warrant to be obtained for the search of
anything else. It does not matter to [t]he [c]ourt where
the vehicle was at this point, whether it was on the side
of the Parkway, whether it was on the side of a
residential street, whether it was anywhere. What is of
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6
import to [t]he [c]ourt is the fact that [Witt] specifically
says towed and impounded vehicles must be searched
only when a warrant [is] secured. This would be an
entirely different conversation if this was not a situation
where John's Law came into play. But I read these
statutes in pari materia and I find that they are, for the
purposes of this motion—again, a very fact-specific set
of circumstances—are to be read together.
The trial court added:
[The officers] did not have the discretion to decide
whether to impound and tow the vehicle. Rather, the
vehicle was being towed as a matter of law. There was
no additional emergency or exigent circumstances that
would have required a search on the side of the road. It
is the opinion of [t]he [c]ourt that based on the totality
of the circumstances presented, in this particular
matter, that the officers should have obtained a warrant
for the search.
We granted the State's motion for leave to appeal. The State raises the
following contention for our consideration:
THE TRIAL COURT ORDER GRANTING
DEFENDANT[S'] MOTION TO SUPPRESS MUST
BE REVERSED BECAUSE IT IS BASED UPON AN
INCORRECT INTERPRETATION OF [Witt].
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. As a general matter, "[o]ur standard of review on a motion to
suppress is deferential." State v. Nyema, 249 N.J. 509, 526 (2022). "[A]n
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appellate court reviewing a motion to suppress must uphold the factual findings
underlying the trial court's decision so long as those findings are supported by
sufficient credible evidence in the record." State v. Ahmad, 246 N.J. 592, 609
(2021) (alteration in original) (quoting State v. Elders, 192 N.J. 224, 243
(2007)). We "defer[ ] to those findings in recognition of the trial court's
'opportunity to hear and see the witnesses and to have the "feel" of the case,
which a reviewing court cannot enjoy.'" Nyema, 249 N.J. at 526 (quoting Elders,
192 N.J. at 244); see also State v. Cohen, 254 N.J. 308, 318-19 (2023).
In contrast to the deference owed to a trial court's factual and credibility
findings, we review a trial court's legal conclusions de novo. State v. S.S., 229
N.J. 360, 380 (2017). We regard the trial court's interpretation of Witt's
on-scene search requirement to be a legal conclusion to which we owe no special
deference. Accordingly, we review the contours of the automobile-exception
reform announced in Witt with a fresh set of eyes. See ibid.Turning to substantive legal principles, the Fourth Amendment to the
United States Constitution and Article I, Paragraph 7 of the New Jersey
Constitution "protect against unreasonable searches and seizures." State v.
Smart, 253 N.J. 156, 164 (2023) (quoting Nyema, 249 N.J. at 527). Importantly
for purposes of this appeal, "[o]ur jurisprudence under both constitutional
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8
provisions expresses a preference that police officers secure a warrant before
they execute a search." Witt, 223 N.J. at 422 (citing State v. Frankel, 179 N.J.
586, 597-98 (2004)). That preference finds expression in the bedrock principle
that warrantless seizures are presumptively invalid. See State v. Goldsmith, 251
N.J. 384, 398 (2022); see State v. Pineiro, 181 N.J. 13, 19 (2004). "To justify a
warrantless search or seizure, 'the State bears the burden of proving by a
preponderance of the evidence that [the] warrantless search or seizure falls
within one of the few well-delineated exceptions to the warrant requirement.'"
State v. Vanderee, 476 N.J. Super. 214, 230 (App. Div. 2023), certif. denied,
255 N.J. 506 (2023) (alteration in original) (quoting State v. Chisum, 236 N.J.
530, 546 (2019)). The automobile exception is one such exception. Witt, 223
N.J. at 422.
That doctrine has undergone significant changes since it was first
articulated by the United States Supreme Court in Carroll v. United States, 267
U.S. 132 (1925). Its episodic evolution under both the New Jersey and United
States Constitutions is recounted in detail in Witt and Smart. See Witt, 223 N.J.
at 422-40; Smart, 253 N.J. at 164-71. We need not reproduce our Supreme
Court's scholarly historical analysis. It is sufficient for present purposes to note
the New Jersey Supreme Court has charted its own course, relying on the
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9
principle that our State Constitution can provide greater protections against
unreasonable searches and seizures than are afforded under the United States
Constitution. Smart, 253 N.J. at 165.
In a nutshell, the divergence between the New Jersey and federal
automobile exceptions focuses on whether and how law enforcement must prove
exigent circumstances to excuse the warrant requirement. In Carroll, the United
States Supreme Court found a "vehicle's inherent mobility provided the
exigency rationale for the exception to the warrant requirement." Witt, 223 N.J.
at 423 (citing Carroll, 267 U.S. at 153). The United States Supreme Court does
not require the prosecutor to prove case-specific exigency. As our Supreme
Court noted in Witt:
Under federal law, probable cause to search a vehicle
"alone satisfies the automobile exception to the Fourth
Amendment's warrant requirement." Maryland v.
Dyson, 527 U.S. 465, 467 (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,
198 N.J. at 28.
[Witt, 223 N.J. at 422.]
New Jersey's automobile-exception jurisprudence, in contrast, has always
accounted for case-specific exigency, not just "inherent" exigency. However,
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the methodology for determining whether there is sufficient exigency to justify
a warrantless automobile search has changed significantly over the years.
In Witt, the Court definitively rejected as "unsound in principle and
unworkable in practice" the multi-factor exigency test the Court used in State v.
Cooke, 163 N.J. 657 (2000), and amplified in Pena-Flores. Witt, 223 N.J. at
447. Witt jettisoned that exigency test, which featured "a dizzying number of
factors," replacing it with a much simpler, more predictable test to be applied
prospectively. Id. at 444.
Although Witt substantially overhauled the material elements of the
automobile exception, it by no means abandoned our State's steadfast adherence
to a case-sensitive exigency analysis. And although Witt discarded the
Pena-Flores exigency test, it did not invent a new exigency formulation to
replace it. Rather, the Court resurrected the exigency test it developed decades
earlier in State v. Alston, 88 N.J. 211 (1981). The restored Alston test requires
the State to prove that probable cause to believe the vehicle contains contraband
or other evidence of unlawful activity arose spontaneously and unforeseeably.
Witt, 223 N.J. at 446-48; cf. Smart, 253 N.J. at 171-74 (explaining foreseeability
and spontaneity as analytically distinct concepts and recognizing probable cause
can arise spontaneously yet foreseeably, as when police investigate information
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11
provided by a confidential informant that is corroborated during a motor vehicle
stop).
Besides requiring proof of spontaneity and unforeseeability, Witt imposed
another precondition—this one based on the "inherent" exigency arising during
roadside encounters. Justice Albin, writing for the majority, explained:
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 [v. Maroney], supra,
399 U.S. [42,] 52 [(1970)]. "Whatever inherent
exigency justifies a warrantless search at the scene
under the automobile exception certainly cannot justify
the failure to secure a warrant after towing and
impounding the car" at headquarters when it is
practicable to do so. 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.
[Witt, 223 N.J. at 448-49 (emphasis added).]
Justice Albin succinctly summarized the location restriction, stating:
"[g]oing 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." Id. at 450.
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In sum, under the Witt reformation of the New Jersey automobile
exception, exigency is accounted for in two distinct ways, applying two distinct
features. First, the State must prove that probable cause to search arose
spontaneously and unforeseeably. Witt, 223 N.J. at 446-48. This type of
exigency analysis is case-sensitive and depends on the particular facts leading
up to and during the police-citizen encounter.
Second, the search must be conducted while the vehicle is still at the scene
of the stop. Id. at 449. This requirement, which we refer to as the location
restriction, is a per se bright-line rule based on the inherent exigency associated
with roadside stops.
III.
This is not our first occasion to interpret Witt's location restriction. In
State v. Rodriguez, 459 N.J. Super. 13, 15 (App. Div. 2019), the trial court
suppressed marijuana and other incriminating evidence police found inside a
vehicle stopped for traffic violations. The trial court "construed Witt to disallow
a warrantless on-the-spot roadside search where police at the scene have
sufficient grounds to have the vehicle towed away and impounded." Ibid. We
reversed the suppression order, holding the "officers were not required to
impound [the] defendant's vehicle in order to search it . . . . The officers had the
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13
discretion to proceed instead with a warrantless roadside search, because the two
critical elements of Witt . . . were satisfied." Ibid.The defendant in that case argued "once the basis to impound a vehicle
becomes clear, police officers have no right to proceed with an on-the-spot
roadside search, even if the officers have probable cause of criminality that arose
spontaneously." Id. at 22-23. We rejected that argument, explaining:
We respectfully do not construe Witt to convey such a
limitation upon the automobile exception. Nothing in
Witt states that a roadside search of a vehicle based
upon probable cause cannot be performed if the vehicle
is going to be impounded. We instead read Witt as
affording police officers at the scene the discretion to
choose between searching the vehicle immediately if
they spontaneously have probable cause to do so, or to
have the vehicle removed and impounded and seek a
search warrant later.
[Id. at 23.]
We added, "[t]he whole tenor of the Witt opinion is to eliminate the need for
police to establish 'exigencies' at the roadside to proceed with a warrantless
search." Id. at 24 (emphasis in original).
In the matter before us, defendants urge us to part company with
Rodriguez, or at least distinguish it. Courtney argues "[i]n short, different
Appellate Division panels may disagree with each other, and the present
occasion seems ripe for disagreement with Rodriguez’s reasoning." We
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respectfully disagree with Courtney and wholeheartedly embrace our colleagues'
interpretation in Rodriquez that Witt permits a roadside search even "if the
vehicle is going to be impounded." Id. at 23 (emphasis added). Although we
had no occasion in Rodriguez to consider whether the result would be different
if police have no discretion on whether to impound a vehicle, 4 the careful and
well-supported analysis in Rodriguez provides a solid foundation upon which to
address the specific question raised in this matter.
IV.
On appeal, defendants do not dispute police had probable cause to search
the vehicle for open containers of alcohol, during which the handgun was
discovered under the front passenger seat. Nor do they dispute probable cause
to search arose spontaneously and unforeseeably during the traffic stop. This
matter hinges solely on whether the police violated the Witt location restriction.
4
We note it is not entirely accurate to suggest John's Law invariably requires
police to impound a vehicle operated by an arrested drunk driver. As the State
correctly notes, in accordance with instruction in an Attorney General Law
Enforcement Directive, John's Law "does not negate the [c]onstitutional right of
the arrested person to make other arrangements for the removal of the vehicle
by another person who is present at the scene of the arrest." Off. of the Att'y
Gen., Law Enf't Directive No. 2004-1, Appendix B, Guidelines Mandatory 12-
Hour Impoundment of Motor Vehicles (Feb. 20, 2004). Thus, impoundment is
not automatically required in all DWI cases.
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The gravamen of the defense argument is when a stopped vehicle must be
towed as a matter of law, so that police have no discretion on whether to remove
it from the scene, there invariably will be an opportunity to apply for a search
warrant once the vehicle is safely secured. In those circumstances, defendants
contend, the general preference for a search warrant becomes paramount,
outweighing the rationale for the automobile exception.
That argument is supported by neither the plain language of Witt nor the
reasons that prompted the Court to reform the automobile exception. We look
first to the text of Witt that explains when the authority to conduct an
automobile-exception search lapses. The Witt Court explicitly referred to "'the
failure to secure a warrant after towing and impounding the car.'" Witt, 223 N.J.
at 449 (quoting Pena-Flores, 198 N.J. at 39 n.1) (emphasis added). As
previously noted, Rodriguez correctly rejected the notion the Witt location rule
applies to impoundments that will be effectuated in the future.
We can scarcely imagine a more clearly stated rule than "we limit the
automobile exception to on-scene warrantless searches." Ibid. And lest there
be any doubt as to what the Witt Court intended, Justice Albin succinctly
summarized the new rule, stating unambiguously, "[g]oing forward, searches on
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the roadway based on probable cause arising from unforeseeable and
spontaneous circumstances are permissible." Id. at 450 (emphasis added).
We reject the notion that authority to conduct an on-scene
automobile-exception search depends on the reason why the vehicle will
eventually be towed. The purpose of a John's Law impoundment is not to
facilitate a police investigation or preserve evidence, but rather to prevent a
drunk driver from regaining possession of the vehicle while still intoxicated.
John's Law makes no mention of searches and thus neither authorizes nor
precludes a probable cause search of an impounded vehicle. 5 Nor does the fact
a vehicle will be towed/impounded pursuant to John's Law affect the inherent
exigencies that exist while it is still at the scene of the stop. See infra Section
V.
5
The record before us does not indicate whether vehicles impounded pursuant
to John's Law are typically taken to different impound facilities than are used to
store vehicles that are instrumentalities of criminal conduct or are believed to
contain physical evidence of criminal activity. As noted, vehicles are
impounded under John's Law to dissociate them from intoxicated drivers, not to
safeguard concealed evidence pending a warrant search. Vehicles seized for
evidentiary purposes would presumably require more security to protect
evidence from theft and preclude claims that evidence was planted or ot herwise
tampered with during the towing process or at the impound facility. Police and
prosecutors have a practical interest in conducting prompt roadside searches to
simplify the proofs relating to the chain of custody.
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Moreover, John's Law is by no means the only basis for impounding
vehicles. We presume there are countless occasions when impoundment is all
but certain, such as when the vehicle is suspected to be an instrumentality and
thus itself is evidence of a crime. If on-scene searches were categorically
precluded when a vehicle is destined to be impounded, that rule might swallow
the automobile exception. For purposes of implementing the Witt location
restriction, therefore, we deem the critical determinant is not the likelihood—or
inevitability—of impoundment, nor the reason for the decision to impound the
vehicle. Rather, the clearly-articulated test is whether the vehicle was actually
removed from the scene of the stop before the search was executed.
V.
We next turn our attention to the reasons that undergird the location
restriction and how Witt addresses "inherent" exigency, that is, exigency that is
essentially presumed and need not be specified and proved on a case-by-case
basis. As we noted in Rodriguez, "[t]he whole tenor of the Witt opinion is to
eliminate the need for police to establish 'exigencies' at the roadside to proceed
with a warrantless search." 459 N.J. Super. at 24 (emphasis in original). We
reaffirm that insightful observation.
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Importantly, by overturning the Pena-Flores multi-factor exigency test,
Witt stressed that police no longer need to estimate the probability of harm
facing officers and motorists accounting for criteria such as traffic volume,
lighting and weather conditions, and the nature of the neighborhood. Indeed,
the whole point of the Witt reform is to obviate the need for officers to make
subjective assessments about the level of exigency needed to excuse the warrant
requirement. Instead, for purposes of the location restriction, the various risks
posed to officers and motorists, and to unsecured evidence, are now incorporated
within the concept of inherent exigency that arises intrinsically during a traffic
stop.
The critical point is these inherent exigencies continue to exist so long as
the detained vehicle remains on the roadside. They only dissipate and become
"fake," to use the Witt Court's characterization, once the vehicle is removed to
a secure location. We conclude the Witt Court did not mean to categorically
foreclose an automobile-exception search while those exigencies still exist.
Rather, the point at which the location restriction is triggered is shown by
Witt's clear explanation of when inherent exigency becomes so attenuated as to
no longer excuse the warrant requirement notwithstanding probable cause had
arisen spontaneously and unforeseeably. We reiterate Justice Albin's
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admonition, "'[w]hatever inherent exigency justifies a warrantless search at the
scene under the automobile exception certainly cannot justify the failure to
secure a warrant after towing and impounding the car' …. Warrantless searches
should not be based on fake exigencies." Witt, 223 N.J. at 448-49 (quoting
Pena-Flores, 198 N.J. at 39 n.1) (emphasis added). The reference to "fake"
exigencies signals the Court will not presume an impounded vehicle presents
the same risks that exist out on the road; once the vehicle has been taken to a
police-controlled impound facility, any such exigencies must be identified and
proved by the State. Articulated another way, to conduct a warrantless probable
cause search at the impound facility, police cannot rely on inherent exigency,
but must instead show "true" exigency sufficient to excuse the warrant
requirement. Witt, 223 N.J. at 449 n.9. Viewed in context, the Court's reference
to "fake" exigencies after a vehicle has been towed/impounded signals the
exigencies extant before towing/impoundment are not fake.
For the foregoing reasons, we read Witt to establish a simple binary test
for determining where an automobile-exception search can be executed:
provided the State has proved probable cause arose spontaneously and
unforeseeably, searches conducted on-scene are permitted; searches conducted
off-scene are not. Under this simple location-based paradigm, the question of
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officer intent or discretion is irrelevant. All that matters is where the vehicle
was located when it was searched.
VI.
The defense argument proceeds from the premise that the automobile
exception should be construed narrowly in accordance with the general
preference for search warrants. As noted, the warrant preference is a bedrock
principle of our search-and-seizure jurisprudence, as is the corollary principle
that warrant exceptions are "jealously and carefully drawn." Jones v. United
States, 357 U.S. 493, 499 (1958); see also State v. Johnson, 476 N.J. Super. 1,
25 (App. Div. 2023) ("we must strictly enforce the material elements" of a
warrant exception).
But the automobile exception is a perfectly valid doctrine that balances
competing constitutional interests—especially given the added protections
afforded to motorists under our State Constitution—and serves a salutary
purpose. Accordingly, the location restriction adopted in Witt must be
interpreted and applied in light of the Court's explicit acknowledgment of the
constitutional benefits of a contemporaneous on-the-spot warrantless search as
compared to a delayed search conducted after the vehicle has been impounded
and a search warrant obtained. The Witt Court explained:
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The third rationale [for the automobile exception], [6]
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, …
399 U.S. at 51-52. 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.
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 requirement would not
provide significant protection of the defendant's Fourth
Amendment interests." United States v. Ross, 456 U.S.
798, 831 (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
6
The Court was referring to the three rationales identified by the United States
Supreme Court for the automobile exception, the first being the inherent
mobility of the vehicle and the second being the lesser expectation of privacy in
an automobile compared to a home. Witt, 223 N.J. at 422-23.
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decide whether instead to conduct an immediate search
of the car." Ibid. (emphasis omitted).
[Witt, 223 N.J. at 424.]
Witt clearly expressed the New Jersey Supreme Court's present view on
the subject, explaining:
The current [Pena-Flores] 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.
[Id. at 446 (emphasis added).]
In a like vein, in Rodriguez, we commented:
[A]n immediate search will not necessarily lead to
greater infringements upon the personal liberty of all
motorists. For example, in some instances (albeit not
this particular case), an on-the-spot search will turn up
nothing, and the stopped motorist may be free to drive
away with only a traffic citation. [7] An inflexible rule
of mandatory impoundment could impose greater
inconvenience upon motorists, particularly if the
vehicle's owner, a relative, or a friend of the motorist is
7
We add that even when an on-scene search reveals a weapon, contraband, or
other evidence leading to an occupant's custodial arrest, the arrestee might be
charged and promptly released from the police station on recognizance or release
conditions. But if police cannot conduct an on-the-spot search, the filing of a
complaint-summons or a complaint-warrant application may be delayed pending
the application for a search warrant and ensuing search of an impounded vehicle,
ultimately delaying the suspect's release from custody.
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nearby and able to come and remove the vehicle from
the scene. [Witt, 223 N.J.] at 415 (noting that if a
vehicle is impounded, the period of detention of its
occupants "will be extended").
[Rodriguez, 459 N.J. Super. at 24-25.]
Lastly, we must not forget the Witt Court deemed it necessary to overhaul
the automobile exception in part because the predecessor exigency formulation
led to a surge of consent searches. As Justice Albin explained:
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.
....
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.
[Witt, 223 N.J. at 442-44.]
Accordingly, in interpreting and applying Witt's location restriction, we
must be careful not to inadvertently create practical incentives for police to
resort again to the consent doctrine to justify on-the-spot searches. See supra
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note 5 (discussing the practical incentive for police and prosecutors to simplify
the chain of custody of seized evidence).
VII.
In the final analysis, we decline to adopt an additional restriction not
articulated by the Witt Court. As we acknowledged in Rodriguez, "it is not our
role as an intermediate appellate court to engraft upon Witt an exception that
was not expressed in the Court's detailed majority opinion." 459 N.J . Super. at
25. We therefore conclude the on-scene search in this case was lawfully
conducted under the New Jersey automobile exception as reformulated in Witt.
Reversed and remanded for further proceedings. We do not retain
jurisdiction.
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