New Jersey Supreme Court: Warrant Requirement a Burden on Citizens

There has been a lot of commentary on the recent New Jersey Supreme Court case, State v. William L. Witt, (A-9-14)(074468), which essentially did away with a warrant requirement for the search of a vehicle in many circumstances.  What the Court ultimately ruled was that, like Pennsylvania a little over a year ago, New Jersey was going to follow the federal warrant requirements, which are quite a bit more relaxed than New Jersey’s.  In determining to exempt automobiles from the exigency requirements, the Court rested heavily on the presumption that the warrant requirement is unduly burdensome on both police and the suspect, as cars are typically impounded while the long wait for a warrant occurs.  See Slip op. at 15.

The case started when William Witt was pulled over by Carney’s Point Township Police Officer Joseph Racite for failing to dim his high beams.  When Officer Racite approached the car and began speaking with Witt, he noticed the smell of alcohol and put Witt through a series of field sobriety tests.  Witt failed them all.  Subsequently, Witt was arrested for DWI and placed into the back of Officer Racite’s police car.  Up to this point, Officer Racite had acted by the book.  (As a side note, the initial stop was likely inappropriate.  The statute – N.J.S.A. 39:3-60 – requires drivers to dim their high beams “whenever the driver of a vehicle approaches an oncoming vehicle within five hundred feet.”  But Officer Racite was stopped; thus, he was not an oncoming vehicle.  The Court declined to entertain this argument, though, because Witt had not brought this defense at trial.  At trial, he had not even contested the validity of the stop.)

After Witt was cuffed and placed in the police car, Officer Racite then began searching for intoxicating substances.  Under the federal automobile exception, this is allowed.  Once an officer has probable cause that a crime has occurred, he has constitutional authority (under the current case law, at least) to search the car for evidence of the crime that he had probable cause to believe occurred.  From there, the plain sight doctrine applies, meaning that if in the search for one object, the officer discovers another, that evidence may be used as the basis for an entirely different crime.  This is what happened here.  Officer Racite found the firearm in the car and then charged Witt with firearms offenses.

Under New Jersey state law at the time, however, Officer Racite was required to have exigent circumstances.  In short, he needed to be able to articulate reasons why either his life was in danger or the evidence would be destroyed in the time it would take to get a warrant.  Because he could not articulate a reason for either (Witt was handcuffed in the back of the police car), both the trial and appellate courts found that the evidence must be suppressed.

For the reasons below, the New Jersey Supreme Court overturned its prior decisions requiring exigent circumstances for warrantless automobile searches and adopted the federal automobile exception.  Fortunately for Mr. Witt, the decision was prospective.  Because the law at the time of his arrest required exigent circumstances, the evidence in his case remained suppressed and he was not convicted of the firearms offense.  Going forward, however, police do not need a warrant to search your automobile, provided they have probable cause to arrest you.

While federal courts have allowed officers to search vehicles and seize evidence from an automobile without a warrant, New Jersey (and until last year, Pennsylvania) required more.  New Jersey had, until last week, required the existence of exigent circumstances.  In other words, there had to be a reason, such as officer safety or the imminent destruction of evidence, to search an automobile without a warrant or consent.

The New Jersey Supreme Court relied on several factors in dispensing with the exigency requirement.  First, the Court found that “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.”  Slip op. at 3.  While there is a good argument that a stop in which the suspect is handcuffed and sitting under arrest in the police car can conceivably constitute “fast-paced” or “requir[ing] prompt action,” the Court did rely solely on the “fast-paced” argument.  The Court primarily relied on the same reasoning that Pennsylvania’s adopted in 2014: “The Pennsylvania high court ultimately concluded that it was ‘difficult, if not impossible, for police officers in the field to determine how [it] would rule in motor vehicle search and seizure cases, the circumstances of which are almost endlessly variable.’’  Slip op. at 20-21.

Thus, as the ACLU pointed out in its amicus brief, the New Jersey Supreme Court decided that rather than making the point simple: “Get a warrant before you search, unless 1) you’re in danger or 2) the evidence is at risk,” the Court erred on the side of making police work easier.  While there’s nothing inherently wrong with making police officers’ jobs easier, in this case the Court placed simplicity over the Constitution.

The Court’s greatest concern, however, was that getting a warrant – even a telephonic warrant – prolongs the detention and is dangerous to both police and the suspect.  This is because the Court found that the longer any individual remains on the shoulder of the road, the higher the likelihood of an accident.  This is probably true, and the Court does cite a fair number of anecdotes to support its contention, but as the dissent points out admirably, this misses the point.  The prolonged wait was not an inherent part of telephonic warrants, but was rather an inefficiency caused by the state, itself.

The Court rested its decision on the fact that telephonic warrants take a long time to get.  A six-month pilot program conducted three years ago in Burlington County found that the goal of the police should be to obtain a telephonic warrant within a half hour, with 45 minutes being the longest amount of time one should have to wait.  The Burlington program showed that warrants were approximately 59 minutes in the making, while the New Jersey State Police [NJSP] found that they had to wait nearly two hours for a warrant.

Because of the long time in obtaining warrants, it appeared that more New Jersey officers were seeking consent searches, which the Court noted could be a big problem.  After all, NJSP had been through a major racial profiling scandal in the late 1990’s and early 2000’s, and the Court was correctly suspicious of whether consent searches were truly consensual.  So-called consent searches placed the driver in an “inherently coercive predicament . . . [because the driver] is stopped on the highway” and facing the choice of full cooperation with a potentially unconstitutional request to search, or increased police scrutiny and possible citation.  “[I]t is not a stretch of the imagination to assume that the individual feels compelled to consent.”  Slip op. at 45.

The Court seemed to be acknowledging that a delay of an hour prompted police to use a more intrusive and constitutionally suspect maneuver.  Indeed, NJSP acknowledged that the “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.”  Slip op. at 35.  It would seem as though the Court’s concern about the inherent voluntariness of a “consent” search was justified.  After all, “exhaust[ing] the consent search option” certainly suggests that NJSP troopers are repeatedly asking for consent, which itself suggests that a fair amount of pressure is being placed on motorists to allow searches.  The 95% consent rate further supports this.

The Court’s solution, however, was not to scrutinize the consent where given, but to eliminate the need for consent or exigency altogether.  Rather, it moved to the next part of the analysis, and attempted to couch the abdication to the State in terms of constitutional protection.

The Court reasoned that a two-hour wait, followed by impoundment of the car (to facilitate a search), was infinitely more intrusive than an on-site search.  While this is true, it entirely misses the point.

First, as any elementary school student should be able to recite, the federal, democratic republican system of government we ostensibly enjoy (and which, notably, is guaranteed to the states in the body of the Constitution), provides that the three branches of government are divided and serve to check one another’s power.  Thus, the legislature passes and funds laws; the executive executes them; and the judiciary keeps watch to ensure everything is being done fairly (John Marshall’s judicial review notwithstanding).  The New Jersey Supreme Court, however, just condensed that, at least regarding automobile searches.  Its decision here gives police officers (part of the executive branch) the judicial authority to determine whether probable cause exists.  Thus, the officer does not actually have to have probable cause.  Rather, he just needs to reasonably believe he does.  That the federal government or other states allow this is no argument (indeed, the U.S. Supreme Court’s own reasoning in Obergefell – the gay marriage case – belies this, as many states and the federal government had failed to recognize same-sex marriages as of only a few years ago.  The U.S. Supreme Court was unconcerned with the number of states that chose not recognize these marriages).

Second, the Court assumes that impounding a car while waiting to procure a warrant survives constitutional muster, in and of itself.  If there is no warrant, and no exigency, then impounding the car is unconstitutional in the first place.  If it is unconstitutional to search the car, then it is surely unconstitutional to seize the whole thing while waiting for permission to search it.

Should no warrant be forthcoming, then what cause was there to seize the car in the first place?  The Court seemingly authorizes the unreasonable seizure of the car while police wait for the judiciary to determine whether a mere search is constitutional.

), is the fact that the entire constitutional analysis occurred within the framework of a one-county pilot program three years ago.  The purpose of any pilot program is to test ideas and then determine how to fix the mistakes.  New Jersey has a telephonic warrant program that seems to work well for obtaining Temporary Restraining Orders (TRO).  And the dissent notes that there was only a 14 minute gap between the target time and the actual time in local police obtaining warrants.  Could not, then, the state give it one more try?

Rather, the state spent the last several years appealing the exigency requirement whenever it had the chance.  You might say they “exhausted” the appellate option prior to Witt.

In short, the Court found that because there were likely abuses occurring by the police and because New Jersey was having a difficult time efficiently following the constitutional dictates of the Fourth Amendment and its own laws, it was better to merely adopt the federal exemption.  While acknowledging that the federal courts are perfectly fine with the automobile exception, and acknowledging the dangers that police officers face, exempting the government from the constraints of the constitution is not the answer.  Would that New Jersey (and Pennsylvania, for that matter) had considered other options before throwing in the towel.