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 3:57(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 lawenforcement 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,

2

 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 PenaFlores 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 PenaFlores 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.

3

 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).

1

 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 exigentcircumstances 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 decisionmaking.

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 exigentcircumstances 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:395(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 motorvehicle 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.
in the back of a patrol car.

Defendant was handcuffed and placed
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.”
Div. 2014).

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

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.
N.J.S.A. 39:3-60).

Id. at 614-16 (quoting

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.
v. Witt, 219 N.J. 624 (2014).

State

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.
of his car.

He only challenged the search

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 exigent10

 circumstances standard for automobile searches followed in PenaFlores 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 PenaFlores 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 PenaFlores.
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 automobileexception 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.
280, 69 L. Ed. 543.

267 U.S. 132, 45 S. Ct.

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.”
45 S. Ct. at 285, 69 L. Ed. at 551.

Id. at 153,

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 41314.
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

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.
1

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

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
2

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.
for doing so were:

Gary, supra, 91 A.3d at 138.

Its reasons

(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.”
(internal citations omitted).

Id. at 233 (emphasis added)

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.”
22

399 U.S. at 50-51, 90 S. Ct.

 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.
at 567.

Id.

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.
N.J. at 434-35.

Colvin, supra, 123

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.
91 S. Ct. at 2035, 29 L. Ed. 2d at 579.

403 U.S. at 460,

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.
Fourth Amendment grounds.

Colvin was decided strictly on
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.’”
123 N.J. at 437).

Id. at 676 (quoting Colvin, supra,

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.
28

For example, a

 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 exigentcircumstances 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 exigentcircumstances 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.
at 662.

163 N.J.

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.
662-63.

Id. at

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.
33-36.

Id. at

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 (PenaFlores) 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 lawenforcement agencies filed 42 telephonic automobile searchwarrant 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.”
(emphasis omitted).

Ibid.

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 PenaFlores -- 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

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

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

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

5

Automobile Consent
Pre-Pena-Flores
April
2008
Granted 19
Denied
2

Searches Conducted by State
Post-Pena-Flores
April
April
April
2009
2010
2011
95
209
229
13
13
13

Police
April
2012
224
40

April
2013
217
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.
14, 19.

Id. at

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 PenaFlores.

Id. at 32.7

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
6

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
Warrantless Automobile Searches Based on Probable Cause
Pre-Pena-Flores
Post-Pena-Flores
April
April
April
April
April
2008
2009
2010
2011
2012
Municipal
141
174
175
157
129
Departments
State
----2
Police
7

38

April
2013
157
2

 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.
226.

See Shannon, supra, 210 N.J. at

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 PenaFlores 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:
with an ideal goal of 30 minutes.”
Warrants Report, supra, at 17.

“no more than 45 minutes,
Supreme Court Telephonic

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.
Pilot Program, supra, at 6, 10.

Pena-Flores

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

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).
8

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 fortyfive 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:
Compliance Audit, at 8 (July 2001)).

Long-term

The federal reports’

finding that 95% of motorists accede to requests for consent to
search is confirmed by more recent reports.
44

See Pena-Flores

 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.”
306 (2006).

State v. Domicz, 188 N.J. 285,

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 exigentcircumstances standard.

Under that standard, before conducting

a warrantless roadside search, police officers must take into
account a dizzying number of factors.
N.J. at 29.

Pena-Flores, supra, 198

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.
46

Thus, searches

 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 fastmoving 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.
428.

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

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.
51

“[W]e

 have not hesitated to find that our State Constitution provides
our citizens with greater rights . . . than those available
under the United States Constitution.”
N.J. 415, 456 (2006).

Lewis v. Harris, 188

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).
based on fake exigencies.

Warrantless searches should not be
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.”
IV, § 7, ¶ 3.

U.S. Const. art. I, § 10; N.J. Const. art.

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

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.
9

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.
44 (2007).

See State v. Elders, 192 N.J. 224, 243-

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, FERNANDEZVINA, 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.
to show exigency.

The State does not want to have

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.
and Cooke.

But that argument was rejected in both Pena-Flores
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

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).
1

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

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/20151_BWC.pdf.
2

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.
and vigorously dissent.

I must respectfully

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.
Ed. 2d at 1035-36.

Id. at 938-40, 116 S. Ct. at 2486, 135 L.
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.”
added).

163 N.J. at 666 (emphasis

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.

requested credentials.

Ibid.

Once stopped, police

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.

8

Id. at 216-17.

 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.
316.

62 N.J. at

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. . . .

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.
3

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.”
N.J. at 233-34).

Ibid. (citing Alston, supra, 88

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.”
omitted).

Id. at 28 (citations

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 PenaFlores 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 PenaFlores 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 PenaFlores 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.
Special Committee Report made detailed recommendations in
respect of implementing a telephonic warrant program in New

17

The

 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 PenaFlores’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.
6).

(Citing Pilot Program, supra, at

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.
supra, at 6.

Pilot Program,

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.
that:

The Burlington Vicinage pilot program was just

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

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
4

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.
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.
5

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.

21

N.J.S.A. 2C:35-5.7(a).

 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/2014CourtsAnnual.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.”

22

H. Morley Swingle & Lane

 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

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
6

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 PenaFlores, 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-tosearch 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-PenaFlores-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.
at 9, 13.

Id.

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/OLEPSReport-Effects-of-Pena-Flores-on-Mun-PDs12.13.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.

28

Although courts must

 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.

30

Instead

 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.

31

The State’s

 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.
OLEPS Study, supra, at 16.

2012

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.
129 S. Ct. at 1720, 173 L. Ed. 2d at 497.

556 U.S. at 344,
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.
L. Ed. 2d at 715.

___ U.S. at ___, 133 S. Ct. at 1568, 185

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 factintensive, 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

OPINION BY

PRESIDING

Justice Albin

CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
CHECKLIST
CHIEF JUSTICE RABNER

Justice LaVecchia
AFFIRM AND
REMAND
X

JUSTICE LaVECCHIA

X

JUSTICE ALBIN

X

JUSTICE PATTERSON

X

JUSTICE FERNANDEZ-VINA

X

JUSTICE SOLOMON

X

JUDGE CUFF (t/a)
TOTALS

DISSENT

X
5

2