SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

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

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

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

In this appeal, the Court addresses the constitutional standard governing an automobile search and 

considers whether to continue to follow the standard set forth in State v. Pena-Flores, 198 N.J. 6 (2009).

Defendant William L. Witt was charged in an indictment with second-degree unlawful possession of a 

firearm and second-degree possession of a weapon by a convicted person. The police initiated a stop of defendant’s 

car because he did not dim his high beams when necessary, and a search of his vehicle uncovered the handgun. 

Defendant moved to suppress the gun on the ground that the police conducted an unreasonable search in 

violation of the New Jersey Constitution. Defendant’s sole argument was that the police did not have exigent 

circumstances to justify a warrantless search of his car under Pena-Flores. At the suppression hearing, Officer 

Racite testified that at approximately 2:00 a.m., while providing backup for a motor-vehicle stop, he observed a car 

pass with its high beams on. The officer explained that a car must dim its high beams “as vehicles approach.” Thus, 

Officer Racite stopped the vehicle, and requested backup. Defendant, the driver, appeared intoxicated and was 

asked to exit his car. Defendant then failed field-sobriety and balance tests, and Officer Racite arrested him for 

driving while intoxicated. Defendant was handcuffed and placed in the back of a patrol car. While Officer Racite 

searched defendant’s vehicle for “intoxicants,” he found a handgun in the center console. With Pena-Flores as its 

guide, the trial court found as follows: the officer had a right to stop defendant’s car based on an “unexpected” 

occurrence and had probable cause to search for an open container of alcohol, but did not have “sufficient exigent 

circumstances” to conduct a warrantless search. Accordingly, the court suppressed the handgun.

The Appellate Division granted the State’s motion for leave to appeal and affirmed the suppression of the 

gun “because of the utter absence of any exigency to support the warrantless vehicle search that occurred,” and 

“because there was no justification for this motor vehicle stop.” 435 N.J. Super. 608, 610-11 (App. Div. 2014). The 

panel declined to address the State’s argument that the exigent-circumstances test in Pena-Flores “should be 

replaced because it has proved to be unworkable and has led to unintended negative consequences,” explaining that, 

as an intermediate appellate court, it had no authority to replace Pena-Flores with some other legal principles. The 

panel also agreed with defendant’s argument, raised for the first time on appeal, that Officer Racite did not have a 

reasonable and articulable suspicion to stop defendant because the relevant statute (N.J.S.A. 39:3-60) requires 

drivers to dim their high beams only when approaching an oncoming vehicle within 500 feet.

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

HELD: The exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in 

practice. Citing Article I, Paragraph 7 of New Jersey’s State Constitution, the Court returns to the standard 

articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: 

The automobile exception authorizes the warrantless search of an automobile only when the police have probable 

cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to 

probable cause are unforeseeable and spontaneous.

1. Before addressing the parties’ arguments on the constitutional standard governing the search of defendant’s 

vehicle, the Court disposes of his challenge to the lawfulness of the stop. Defendant did not challenge the validity of 

the motor-vehicle stop before the trial court, but now claims that the filing of a motion to suppress under Rule 3:5-

7(a) required the State to justify every aspect of the warrantless search, including the initial stop. The Court rejects

defendant’s contention and concludes that the Appellate Division should have declined to entertain the belatedly 
2

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, 
3

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.
1

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).
2

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 
3

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 warrantapplication 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 
4

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:39-

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

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 fieldsobriety and balance tests, Officer Racite arrested him for 

driving while intoxicated. Defendant was handcuffed and placed 

in the back of a patrol car. While Racite searched defendant’s 
6

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

console.

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

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

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

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

“sufficient exigent circumstances” to conduct a warrantless 

search. Accordingly, the court suppressed the handgun.

The Appellate Division granted the State’s motion for leave 

to appeal. 

B.

The Appellate Division affirmed the trial court’s 

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

exigency to support the warrantless vehicle search that 

occurred, and because there was no justification for this motor 

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

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

argument that the exigent-circumstances test in Pena-Flores

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

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

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

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

principles.” Ibid. 

Second, in applying Pena-Flores, the panel determined that 
7

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

anything close to an exigency that would permit a motor vehicle 

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

stop occurred in the early morning when defendant was driving 

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

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

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

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

obtained.” Ibid. 

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

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

“reasonable and articulable suspicion” to stop defendant for 

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

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

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

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

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

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

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

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

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

C.

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

v. Witt, 219 N.J. 624 (2014). We also granted the motions of 
8

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 
9

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

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

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

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

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

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

from using his high beams when he “approaches an oncoming 

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

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

defense did not question the validity of the stop at the 

suppression hearing, the record is barren of facts that would 

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

discloses that Officer Racite was on the side of the road 

assisting as backup on a motor-vehicle stop when defendant

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

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

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

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

elicited whether any other cars were travelling in the opposite 

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

moment. 

Generally, “the points of divergence developed in 

proceedings before a trial court define the metes and bounds of 

appellate review.” State v. Robinson, 200 N.J. 1, 19 (2009). 
10

Parties must make known their positions at the suppression 

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

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

exceptions, “‘our appellate courts will decline to consider 

questions or issues not properly presented to the trial court 

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

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

(1973)).

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

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

State was deprived of the opportunity to establish a record that 

might have resolved the issue through a few questions to Officer 

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

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

Appellate Division should have declined to entertain the 

belatedly raised issue. We therefore reverse the Appellate 

Division and hold that the lawfulness of the stop was not 

preserved for appellate review.

We now turn to the parties’ arguments, which address

whether this Court should continue to follow the standard for 

automobile searches set forth in Pena-Flores.

III.

A.

The State urges this Court to abandon the exigent-
11

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 
12

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 
13

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 
14

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
15

satisfies the automobile exception to the Fourth Amendment’s

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

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

automobile exception does not require “a separate finding of

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

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

The United States Supreme Court has identified three 

rationales for the current automobile exception: (1) the 

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

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

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

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

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

recognition that a Fourth Amendment intrusion occasioned by a 

prompt search based on probable cause is not necessarily greater 

than a prolonged detention of the vehicle and its occupants 

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

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

The first rationale is clearly expressed in Carroll, supra,

the case in which the United States Supreme Court first 

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

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

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

Prohibition laws. Id. at 160, 45 S. Ct. at 287, 69 L. Ed. at 
16

554. The Court upheld the warrantless search because the police 

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

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

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

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

historically, Fourth Amendment jurisprudence had distinguished

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

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

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

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

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

vehicle’s inherent mobility provided the exigency rationale for 

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

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

The second rationale is that, due to the pervasive 

governmental regulation of motor vehicles, an individual is 

afforded a lesser expectation of privacy in an automobile.

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

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

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

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

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

Fourth Amendment there is a constitutional difference between 

houses and cars”). Thus, the Supreme Court has held that, so 
17

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

expectation of privacy in a vehicle and its ready mobility 

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

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

14.

The third rationale, and in many ways the most compelling

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

of a vehicle may represent a lesser intrusion than impounding 

the vehicle and detaining its occupants while the police secure 

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

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

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

immobilization” of a motor vehicle while the police secured a 

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

warrantless search premised on probable cause. Ibid. He 

concluded that either “seizing and holding a car before 

presenting the probable cause issue to a magistrate” or

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

probable cause were both “reasonable” courses under the Fourth 

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

Across the Supreme Court’s jurisprudential spectrum,

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

dissent joined by Justice Brennan, wrote that “the warrantless 

search [of an automobile] is permissible because a warrant 
18

requirement would not provide significant protection of the 

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

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

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

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

securing a search warrant “would be more intrusive than the 

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

position that “even where police can bring both the defendant 

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

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

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

Ibid. (emphasis omitted).

We are unaware of any contemporary United States Supreme 

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

current iteration of the federal automobile exception.1 No 

 

1 In Dyson, supra, although dissenting from the majority’s 

summary reversal of the Maryland Court of Appeals, Justices 

Breyer and Stevens nonetheless “agree[d] that the Court’s per

curiam opinion correctly states the law” on the automobile 

exception. 527 U.S. at 468, 119 S. Ct. at 2014, 144 L. Ed. 2d 

at 446 (Breyer, J., dissenting). In Labron, supra, Justices 

Stevens and Ginsburg dissented solely on procedural grounds in 

that automobile search case. 518 U.S. at 941-42, 116 S. Ct. at 

2487-88, 135 L. Ed. 2d at 1036-37 (Stevens, J., dissenting). 

They believed that the Pennsylvania Supreme Court had rested its 

decision on its own Constitution, and for that reason the United 

States Supreme Court should not have exercised its jurisdiction. 

Ibid. They did not disagree with the majority’s description of 

the federal automobile exception. Ibid. 
19

federal case cited by the dissent suggests any wavering over the 

now well-settled automobile exception.

B.

The overwhelming majority of states have adopted the 

federal approach to the automobile exception and do not require

exigency beyond the inherent mobility of the vehicle.2 See

 

2 See Mewbourn v. State, 570 So. 2d 805, 810 (Ala. Crim. App. 

1990); State v. Prasertphong, 75 P.3d 675, 685 (Ariz. 2003); 

State v. Crane, 446 S.W.3d 182, 186 (Ark. 2014); People v. 

Chavers, 658 P.2d 96, 101 (Cal. 1983); People v. Hill, 929 P.2d 

735, 739 (Colo. 1996); State v. Winfrey, 24 A.3d 1218, 1224 

(Conn. 2011); Reeder v. State, 783 A.2d 124 (Del. 2001); State 

v. Starkey, 559 So. 2d 335, 339 (Fla. Dist. Ct. App. 1990); 

State v. Lejeune, 576 S.E.2d 888, 892 (Ga. 2003); State v. 

Tucker, 979 P.2d 1199, 1200 (Idaho 1999); People v. Contreras, 

22 N.E.3d 368, 377 (Ill. App. Ct. 2014); Meister v. State, 

933 N.E.2d 875, 880 (Ind. 2010); State v. Cain, 400 N.W.2d 582, 

585 (Iowa 1987); State v. Conn, 99 P.3d 1108, 1114 (Kan. 2004) 

Chavies v. Commonwealth, 354 S.W.3d 103, 111 (Ky. 2011); State 

v. Thompson, 842 So. 2d 330, 336-38 (La. 2003); State v. Melvin, 

955 A.2d 245, 250 (Me. 2008); Fair v. State, 16 A.3d 211, 217 

(Md. Ct. Spec. App. 2011); Commonwealth v. Motta, 676 N.E.2d 

795, 799 (Mass. 1997); People v. Kazmierczak, 605 N.W.2d 667, 

672 (Mich. 2000); State v. Gauster, 752 N.W.2d 496, 508 (Minn. 

2008); Franklin v. State, 587 So. 2d 905, 907 (Miss. 1991); 

State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. 1990); State v. 

Neely, 462 N.W.2d 105, 109-10 (Neb. 1990); State v. Lloyd, 

312 P.3d 467, 474 (Nev. 2013); People v. Galak, 616 N.E.2d 842, 

844 (N.Y. 1993); State v. Isleib, 356 S.E.2d 573, 576-77 (N.C. 

1987); State v. Zwicke, 767 N.W.2d 869, 873 (N.D. 2009); State 

v. Welch, 480 N.E.2d 384, 387-88 (Ohio), cert. denied, 474 U.S.

1010, 106 S. Ct. 537, 88 L. Ed. 2d 468 (1985); Gomez v. State, 

168 P.3d 1139, 1145 (Okla. Crim. App. 2007); State v. Meharry, 

149 P.3d 1155, 1157 (Or. 2006); Commonwealth v. Gary, 91 A.3d 

102, 138 (Pa. 2014); State v. Werner, 615 A.2d 1010, 1014 (R.I. 

1992); State v. Weaver, 649 S.E.2d 479, 482 (S.C. 2007); State 

v. Sweedland, 721 N.W.2d 409, 412-13 (S.D. 2006); State v. 

Saine, 297 S.W.3d 199, 207 (Tenn. 2009); State v. Guzman, 959 

S.W.2d 631, 634 (Tex. Crim. App. 1998); Duncan v. Commonwealth, 

684 S.E.2d 838, 840 (Va. Ct. App. 2009); State v. Tompkins, 423 
20

Commonwealth v. Gary, 91 A.3d 102, 133-34 (Pa. 2014) (noting 

that “most states have adopted the federal automobile 

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

eliminated an exigent-circumstances requirement for automobile 

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

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

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

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

The Pennsylvania Supreme Court recently jettisoned its 

exigent-circumstances standard and adopted the federal 

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

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

“decisional law as to what circumstances constitute sufficient 

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

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

unknown persons will attempt to tamper with evidence in the 

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

articulate “a consistent, clear, understandable, and readily 

applicable conception of exigency sufficient to support a 

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

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

impossible, for police officers in the field to determine how 

 

N.W.2d 823, 829 (Wis. 1988); Phippen v. State, 297 P.3d 104, 108 

(Wyo. 2013).
21

[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 fastflowing 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 
22

for the automobile-exception “recognized in Carroll and 

Chambers.” Id. at 233; see also Paul Stern, Revamping Searchand-Seizure Jurisprudence Along the Garden State Parkway, 41 

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

Supreme Court aligned its analysis [of the automobile exception] 

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

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

separate source of rights, but instead to Chambers as the 

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

the positions of the defendants and the Appellate Division 

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

warrantless automobile search. In doing so, we stated that

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

the invocation of the automobile exception are the 

unforeseeability and spontaneity of the circumstances giving 

rise to probable cause, and the inherent mobility of the 

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

(internal citations omitted). The “unforeseeability and 

spontaneity” requirement in Alston came from the United States 

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

“the circumstances that furnish probable cause to search a 

particular auto for particular articles are most often 

unforeseeable; moreover, the opportunity to search is fleeting

since a car is readily movable.” 399 U.S. at 50-51, 90 S. Ct.
23

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 
24

furnished the officers with probable cause were unanticipated 

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

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

contains contraband or evidence of criminal activity,” a 

warrantless search under the automobile exception is 

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

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

have probable cause to conduct a warrantless search of an 

automobile at the spot where the officers encounter the car, 

they may constitutionally remove the vehicle to police 

headquarters and there conduct the search without first 

obtaining a warrant.” Id. at 568. 

Although not necessary to justify a search pursuant to the 

automobile exception, the Court listed an independent exigency

warranting an immediate search of the vehicle: the suspects in 

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

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

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

Chambers paradigm. Id. at 570. 

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

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

appeared clear: provided that probable cause arose at the time 

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

Stern, supra, 41 Rutgers L.J. at 671. 
25

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

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

primarily on the basis of a general exigent-circumstances 

analysis, even though we introduced the issue as one that 

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

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

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

the police were advised by an informant that drugs were stashed 

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

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

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

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

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

the primary precedential guide for resolving the search issue.

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

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

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

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

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

determined to be unconstitutional because the police had known 

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

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

Coolidge did not arise from spontaneous or unforeseeable 

circumstances. 
26

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

missing in Coolidge were present” to justify a warrantless 

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

contained the ‘contraband’ drugs; there were ‘confederates 

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

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

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

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

repeatedly invoked the nomenclature of the automobile exception 

in Colvin, the constitutional analysis was primarily based on 

pure exigent circumstances. Colvin was decided strictly on 

Fourth Amendment grounds. The Court evidently concluded that 

its decision was harmonious with federal jurisprudence because 

Colvin does not once mention our State Constitution as a 

separate source of rights. 

D.

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

States Supreme Court’s Fourth Amendment automobile-exception 

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

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

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

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

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

at 2487, 135 L. Ed. 2d at 1036); see Dyson, supra, 527 U.S. at
27

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 
28

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

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

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

exacting exigent-circumstances standard, if faithfully applied,

should result in the securing of search warrants in most

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

one even in Cooke.

The exigency requirement in Alston, as the Cooke Court 

noted, was the “‘unforeseeability and spontaneity of the 

circumstances giving rise to probable cause, and the inherent 

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

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

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

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

police officers who possessed probable cause well in advance of 

an automobile search sought a warrant. Police officers could 

not sit on probable cause and later conduct a warrantless 

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

no connection with a police officer not procuring a warrant. 

The Alston standard provided a limited exigency to the warrant 

requirement. 

However, just because the circumstances giving rise to 

probable cause are unforeseeable and spontaneous does not mean 

that it is impracticable to secure a warrant. For example, a 
29

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. 163 N.J.

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

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

team. Ibid. The officers arrested the defendant on an 

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

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

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

drugs. Id. at 663. 
30

The trial court and Appellate Division both concluded that 

a search of the Escort was not justified by exigent 

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

ground that it would have been impracticable to require the 

police to obtain a warrant and therefore an immediate search was 

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

continuing surveillance by one officer, and other officers could 

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

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

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

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

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

police control. 

The finding of exigency in Cooke was questionable. When 

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

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

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

contrast, a warrantless search would have been permissible under 

the Alston standard because the probable cause arose from 

unforeseeable and spontaneous circumstances. 

E.

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

reaffirmed the exigent-circumstances standard enunciated in 

Cooke, rejecting the State’s plea for a return to the Alston
31

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 
32

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

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

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

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

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

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

“access to an efficient and speedy electronic and telephonic 

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

that will obviate the need for difficult exigency assessments; 

and that will guarantee our citizens the protections that the 

warrant requirement affords.” Id. at 36.

To advance that goal, the Court established a Task Force 

“to address the practical issues involved in obtaining 

telephonic and electronic warrants” and “make practical 

suggestions to ensure that technology becomes a vibrant part of 

our process.” Id. at 35. 

V.

A.

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

Court Special Committee on Telephonic and Electronic Search 

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

the Supreme Court Special Committee on Telephonic and Electronic 

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

made a number of observations and recommendations, some of which 
33

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 
34

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. 
35

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.” Ibid.

(emphasis omitted). The State Police explained that its 

“current patrol policy and practice is to exhaust the consent 

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

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

project, the State Police obtained the driver’s or occupants’
36

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

 

3 The Burlington County Study was not before the Court at the 

time Shannon was decided.
37

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

participating municipal police departments and the State Police 

regarding automobile searches before and after the decision in

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

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

there was a noticeable increase in consent to search requests 

for both municipal departments and the State Police; even with 

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

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

searches surged ten-fold and municipal law enforcement consent 

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

 

4 The second report incorporates all statistical information 

contained in the first report.

5 Automobile Consent Searches Conducted by State Police

 Pre-Pena-Flores Post-Pena-Flores

April 

2008

April 

2009

April 

2010

April 

2011

April 

2012

April 

2013

Granted 19 95 209 229 224 217

Denied 2 13 13 13 40 10

Automobile Consent Searches Conducted by Municipal Departments

 Pre-Pena-Flores Post-Pena-Flores

April 

2008

April 

2009

April 

2010

April 

2011

April 

2012

April 

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.
38

addition, the statistics reveal that more than 95% of operators

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

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

municipal automobile searches nearly doubled due to the

increased number of consent searches. By contrast, search 

warrant requests from municipal departments did not increase to 

a statistically significant level, and those from the State 

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

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

municipal departments, the number of non-consent, warrantless 

searches have remained fairly constant before and after PenaFlores. Id. at 32.7 

 

6 Automobile Search Warrant Requests Made by State Police

Pre-Pena-Flores Post-Pena-Flores

April 2008 April 

2009

April 

2010

April 

2011

April 

2012

April 

2013

0 3 13 11 19 32

Automobile Search Warrant Requests Made by Municipal Departments

Pre-Pena-Flores Post-Pena-Flores

April 2008 April 

2009

April 

2010

April 

2011

April 

2012

April 

2013

4 8 12 7 7 15

7 Warrantless Automobile Searches Based on Probable Cause

Pre-Pena-Flores Post-Pena-Flores

April 

2008

April 

2009

April 

2010

April 

2011

April 

2012

April 

2013

Municipal 

Departments

141 174 175 157 129 157

State 

Police

-- -- -- -- 2 2
39

VI.

The issue before the Court is whether to continue down the 

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

that Cooke departed from our decision in Alston. The resolution 

of the issue implicates the doctrine of stare decisis.

Stare decisis promotes consistency, stability, and 

predictability in the development of legal principles and 

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

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

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

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

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

Although stare decisis furthers important policy goals, it 

is not an inflexible principle depriving courts of the ability 

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

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

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

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

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

Experience and further consideration will reveal, at times, that 

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

 

Prior to April 2012, the State Police did not keep measurable 

statistics in this category. Pena-Flores Report, supra, at 32.
40

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, 
41

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 
42

Constitution and whether there is “special justification” for 

departing from it.

VII.

A.

Clearly, the use of telephonic search warrants has not 

resolved the difficult problems arising from roadside searches, 

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

Court Special Committee on Telephonic and Electronic Search 

Warrants was greatly concerned about the safety of police 

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

of a heavily traveled highway or road while a telephonic warrant 

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

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

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

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

after Pena-Flores, the Burlington County project commissioned by 

the Administrative Office of the Courts found that the average 

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

State Police reported that Troop C experienced times of between 

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

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

reduce the perils of roadside stops has not been realized. 

Prolonged encounters on the shoulder of a crowded highway --

even within the range of 30 to 45 minutes -- may pose an 
43

unacceptable risk of serious bodily injury and death. News 

reports reveal the carnage caused by cars and trucks crashing

into police officers and motorists positioned on the shoulders 

of our highways.8 

The dramatic increase in the number of consent searches 

since Pena-Flores is apparently an unintended consequence of 

that decision. With hindsight, the explanation becomes clearer. 

Consent searches avoid the dangers of protracted roadway stops 

while search warrants are procured, and they remove the legal 

unpredictability surrounding a warrantless search based on the 

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

sanguine as defendant and amici about the benefits of consent 

searches in such great numbers. 

Not long ago, the State Police subjected minority motorists 

 

8 See, e.g., Steph Solis, Seaside Heights Man Charged with DWI 

After Crashing into Brick Patrol Car, Asbury Park Press, June 

26, 2015, at 9A (police officer hospitalized after intoxicated 

driver crashed into his patrol car during course of traffic 

stop); Abbott Koloff, School Van Driver Dies in GSP Accident, 

Bergen Record, July 24, 2014, at L-2 (man killed, two others 

injured, when vehicle struck car and three pedestrians on 

Parkway grassy median); Stephen Stirling, Two Officers Injured 

in Roadside Accident, Star-Ledger, July 20, 2014, at 17 (two 

police officers injured, one suffering broken ribs and “severe 

cuts to the head and face,” after driver crashed into two patrol 

cars during traffic stop); Stefanie Dazio & Christopher Maag,

Driver Charged in Crash that Killed Cop, Bergen Record, July 18, 

2014, at A-1 (police officer killed while operating radar on 

shoulder when rear-ended by tractor-trailer); Monroe Officer Hit 

by SUV, Injured, Courier-Post, June 24, 2014, at 4A (police 

officer suffered broken leg and knee injury after intoxicated 

driver crashed into him during course of traffic stop).
44

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: Long-term 

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

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

search is confirmed by more recent reports. See Pena-Flores 
45

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

19.

Given the widespread abuse of consent searches, this Court 

in Carty forbade police officers from making consent-search 

requests unless they had reasonable and articulable suspicion to 

believe a vehicle contained contraband or evidence of an 

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

coercive effect of a search request made to a motorist stopped 

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

coercive predicament of the driver who is stopped on the highway 

and faced with the perceived choice of either refusing consent 

to search and therefore increasing the likelihood of receiving a 

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

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

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

not a stretch of the imagination to assume that the individual 

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

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

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

expect that the rejection of the automobile exception would lead 

to police dependency on consent searches. We also must be 

mindful that consent searches may be made on less than probable 

cause and that after Pena-Flores the number of searches 

conducted by municipal police officers nearly doubled due to the 
46

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. Pena-Flores, supra, 198 

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

the acceptable ratio of officers to suspects, what should the 

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

confederates are skulking about, and what does it mean to 

consider leaving the car unguarded when the car can be safely 

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

statistics suggest that the Pena-Flores exigency formula has 

left “many police officers with an unwillingness to hazard a 

guess, fearing that a mistaken decision will result in the 

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

enforcement officer responding to rapidly evolving events on the 

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

such confounding and speculative information that we cannot 

expect uniform and consistent decision-making. Thus, searches 
47

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.
48

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 
49

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 
50

intrusion is debatable, as Justice White observed in Chambers, 

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

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

concluded that “carrying out an immediate search without a 

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

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

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

of the New Jersey Constitution, subject to the caveats in 

Alston.

Although we believe that the exigent-circumstances standard 

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

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

automobile searches because that standard is not fully consonant 

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

State Constitution.

VIII.

In Alston, supra, we held that the automobile exception 

authorized the warrantless search of an automobile only when the 

police have probable cause to believe that the vehicle contains 

contraband or evidence of an offense and the circumstances 

giving rise to probable cause are unforeseeable and spontaneous. 

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

were merely following the test set forth by the United States

Supreme Court in Chambers. Labron and Dyson make clear that 
51

even an unforeseeability and spontaneity requirement is not part 

of the federal automobile exception.

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

interpretation of the automobile exception under the Fourth 

Amendment and return to the Alston standard, this time supported 

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

properly balances the individual’s privacy and liberty interests 

and law enforcement’s investigatory demands. Alston’s 

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

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

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

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

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

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

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

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

police had probable cause to believe the vehicle contained 

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

the circumstances giving rise to probable cause were foreseeable 

and not spontaneous, the warrant requirement applies.

We adopt this approach under our State Constitution because 

it is a reasonable accommodation of the competing interests 

between the individual’s right to be free from unreasonable 

searches and law enforcement’s investigatory demands. “[W]e 
52

have not hesitated to find that our State Constitution provides 

our citizens with greater rights . . . than those available 

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

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

that the State Constitution provides greater protection against 

unreasonable searches and seizures than the Fourth Amendment.” 

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

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

privacy in Internet subscriber information); State v. 

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

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

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

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

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

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

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

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

Alston standard.

We also part from federal jurisprudence that allows a 

police officer to conduct a warrantless search at headquarters

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

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

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

warrantless search at the scene under the automobile exception 
53

certainly cannot justify the failure to secure a warrant after 

towing and impounding the car” at headquarters when it is 

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

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

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

7 of the New Jersey Constitution, we limit the automobile 

exception to on-scene warrantless searches.9

IX.

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

prospectively because to do otherwise would be unfair and 

potentially offend constitutional principles that bar the 

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

N.J. Const. art. IV, § 7, ¶ 3. 

The United States Constitution and the New Jersey 

Constitution both prohibit the State Legislature from passing an 

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

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

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

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

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

 

9 We do not suggest that under appropriate circumstances an 

inventory of a car at headquarters cannot be undertaken pursuant 

to State v. Slockbower, 79 N.J. 1 (1979), and State v. Ercolano, 

79 N.J. 25 (1979), or that the police cannot undertake a search 

based on a true exigency.
54

Clause from passing such a law, it must follow that a State 

Supreme Court is barred by the Due Process Clause from achieving 

precisely the same result by judicial construction.”).

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

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

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

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

All these, and similar laws, are manifestly unjust and 

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

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

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

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

1 L. Ed. at 650.

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

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

defendant on suspicion of driving while intoxicated did not have 

exigent circumstances to search the car for opened bottles of 

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

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

those findings because they are supported by sufficient credible

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

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

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

new rule of law applied prospectively we need not address that 
55

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.
1

SUPREME COURT OF NEW JERSEY

A-9 September Term 2014

074468

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM L. WITT,

Defendant-Respondent.

JUSTICE LaVECCHIA, dissenting.

Persistence has paid off. 

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

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

revisited and overturned. Pena-Flores reaffirmed State v. 

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

constitutional law requires that exigency remain part of the 

analysis when reviewing law enforcement’s purported 

justification for searching a car in New Jersey without a 

warrant authorized by a neutral magistrate. Both cases held 

that exigency is a necessary component for a warrantless search 

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

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

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

to show exigency. It wants a relatively automatic exception to 
2

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

as the police encounter leading to the search is spontaneous and 

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

and Cooke. Hence this persistence in having those decisions 

revisited.

The State brought petitions for certification raising the 

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

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

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

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

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

improvidently granted in an Order carrying a lead caption from 

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

Our Order in Shannon reminded the State of its burden to 

show special justification when seeking to upend settled law. 

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

the special-justification finding essential for the Court to 

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

took the remarkable step in Shannon of identifying the type of 

record that the State would have to present to support its 

requested overturning of decided case law protective of 

citizens’ constitutional right to be free from warrantless 

searches of their vehicles. Id. at 227-28. 
3

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 PenaFlores and Cooke and the three decades of precedent on which 

those decisions rely. 

The Court’s decision today represents a radical change in 

our jurisprudence. It lessens the protection from warrantless 

searches of automobiles that New Jersey historically has 

provided. 

The majority adopts an automobile exception that rejects 

the need to show that exigency makes impracticable obtaining a 

warrant issued by a neutral magistrate. The majority says that 

determining exigency is just too difficult -- notwithstanding 

that police frequently are called on to make exigency 

determinations in search settings1 -- and decrees that there no 

longer will be any requirement of demonstrating exigency for 

 

1 See, e.g., State v. Reece, ___ N.J. ___, ___-___ (2015) (slip 

op. at 17-19) (noting exigency required for application of 

emergency-aid doctrine); State v. Walker, 213 N.J. 281, 295-98 

(2013) (noting exigent circumstances justifying warrantless 

arrest); State v. Edmonds, 211 N.J. 117, 130-41 (2012)

(emphasizing need for exigency showing in community caretaking 

cases).
4

roadside searches of stopped vehicles occurring anywhere in the 

State of New Jersey. By eliminating the exigency requirement, 

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

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

constitutionally insufficient in this State.

The State has not won because it has proved special 

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

State’s argument demonstrates seeming recognition of that 

failure by shifting from attempting to prove that obtaining 

telephonic warrants is impracticable to a new worry about a 

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

consent searches. Instead of asking people for consent, the 

Attorney General wants this Court to simply allow searches of 

cars roadside based on an officer’s unreviewed belief that 

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

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

for some reason cannot obtain telephonic warrants, despite the 

 

2 See Samantha Marcus, Body Cams Coming to a Cop Near You as N.J. 

Pledges Millions to Equip Officers, NJ.com (July 28, 2015), 

http://www.nj.com/politics/index.ssf/2015/07/body_cams_coming_to

_a_cop_near_you_as_nj_pledges_millions_to_equip_officers.html; 

Office of the Attorney General, Attorney General Law Enforcement 

Directive No. 2015-1 (July 28, 2015), available at

http://www.state.nj.us/lps/dcj/agguide/directives/2015-

1_BWC.pdf. 
5

fact that telephonic warrants are used in many other settings. 

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

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

Through perseverance in seeking the reversal of a disliked 

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

comply, the Attorney General has been rewarded on the basis of a 

wholly inadequate and unpersuasive record. Indeed, that reward 

is a direct result of the Attorney General’s persistence leading 

to a majority now willing to effect this jurisprudential change. 

Ironically, the majority takes this step at a time when 

federal jurisprudence is veering away from any per se categories 

of assumed exigency. The arc of history may prove embarrassing 

indeed for my colleagues in the majority. I must respectfully 

and vigorously dissent. In my view, stare decisis should 

prevail. 

I.

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

that the law will not merely change erratically, but will 

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

because it] permits society to presume that bedrock principles 

are founded in the law rather than in the proclivities of 

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

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

such persuasive force that we have always required a departure 
6

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 
7

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

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

the Court rejected an interpretation of the Fourth Amendment 

that would necessitate a demonstration of the presence of 

exigent circumstances before officers conducted an automobile 

search under the federal automobile exception to the general 

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

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

readily mobile and probable cause exists to believe it contains 

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

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

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

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

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

exception’ has no separate exigency requirement”). 

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

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

automobile exception requires a finding of exigent circumstances 

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

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

in the affirmative; for purposes of our own state constitutional 

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

of an exigent-circumstances component under the federal 

automobile exception. Id. at 670. 
8

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

repeatedly looked to exigent circumstances to justify 

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

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

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

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

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

substantiate that statement, the Court provided a detailed 

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

Martin, and LaPorte, we held that the warrantless automobile 

searches were reasonable only because they were supported by 

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

668 (emphasis added). 

Alston, supra, involved police pursuit of a speeding 

vehicle during which the officers noticed that the vehicle’s 

occupants were acting furtively in an apparent attempt to 

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

requested credentials. Ibid. When one occupant opened the 

glove compartment to retrieve those credentials, police observed 

shotgun ammunition. Ibid. The vehicle’s occupants were 

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

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

protruding from underneath the front passenger seat, concealing 

what the detective determined to be a shotgun. Id. at 216-17. 
9

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 
10

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).]
11

The Court also emphasized the ongoing nature of the 

investigation of the nearby armed robbery, which heightened the 

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

need for the police to ascertain whether the car contained 

evidence of the armed robbery, before the suspects had an 

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

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

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

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

exigent circumstances, we upheld the warrantless search in 

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

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

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

570).

In LaPorte, supra, the defendant contended that the 

warrantless search of his automobile at police headquarters, 

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

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

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

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

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

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

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

According to the Cooke Court, “the circumstances [in LaPorte] 
12

made it impracticable for the police to procure a search warrant 

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

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

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

LaPorte -- the unanimous Cooke Court pointed out the factual 

features that presented exigency: reasons associated with 

either police safety or prevention of loss or destruction of 

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

highlighted as essential parts of this Court’s past holdings 

supporting warrantless searches of automobiles. See ibid.

Following its review of those as well as other past 

decisions,3 the Court in Cooke stated: 

In view of our unwavering precedent and 

the important rights at stake, we see no need 

to modify our jurisprudence. Stated 

differently, the State has provided no 

compelling basis for us to curtail or 

eliminate those standards that for decades 

have served the criminal justice system, and 

served it well, balancing constitutional 

guarantees against the need for effective law 

enforcement. . . .

 

3 Included in that discussion was Colvin, supra, 123 N.J. 428. 

The majority diminishes Colvin by characterizing it as a 

decision “primarily based on pure exigent circumstances,” ante

at ___ (slip op. at 26), even while acknowledging that the 

Colvin Court “introduced the issue as one that ‘concerns the 

scope of the automobile exception,’” ante at ___ (slip op. at 

25) (quoting Colvin, supra, 123 N.J. at 429) (internal quotation 

marks omitted). Contrary to the majority’s portrayal, Colvin is 

in line with our past precedent and its analysis consistent with 

our requirement that exigent circumstances must be present to 

apply the automobile exception in New Jersey. 
13

[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 
14

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

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

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

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

separate exigency aspects of the analysis. Discussing the 

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

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

would have been no need to detail the facts and circumstances 

that created the exigency had the mere mobility of the vehicle 

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

“together Alston and Martin rejected the federal standard by 

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

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

facts and circumstances of the case, and does not automatically 

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

Following a discussion of Cooke and the consistency of our 

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

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

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

believe that the vehicle contains contraband or evidence of a 

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

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

omitted). The Court then provided a list of examples of 
15

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 singlesentence 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 PenaFlores 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 
16

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-PenaFlores 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.
17

In Pena-Flores, supra, the Court recognized a need for “an 

efficient and speedy electronic and telephonic warrant procedure 

that will be available to [police] on the scene[,] . . . obviate 

the need for difficult exigency assessments[,] and . . . 

guarantee our citizens the protections that the warrant 

requirement affords -- an evaluation of probable cause by a 

neutral judicial officer.” 198 N.J. at 36. To that end, the 

Pena-Flores Court ordered the creation of a task force “to 

address the practical issues involved in obtaining telephonic 

and electronic warrants.” Id. at 35. The task force was to 

“study . . . telephonic and electronic warrant procedures and 

make practical suggestions to ensure that technology becomes a 

vibrant part of our process,” including “recommendations for 

uniform procedures (including forms), equipment, and training, 

along with an evaluation of the scheme once it is underway.” 

Id. at 35-36. The resulting Supreme Court Special Committee on 

Telephonic and Electronic Search Warrants (Special Committee) 

was formed and its findings culminated in a January 2010 report. 

Report of the Supreme Court Special Committee on Telephonic & 

Electronic Search Warrants (Jan. 22, 2010) [hereinafter Special 

Committee Report], available at

http://www.judiciary.state.nj.us/notices/2010/n100520b.pdf. The 

Special Committee Report made detailed recommendations in 

respect of implementing a telephonic warrant program in New 
18

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. (Citing Pilot Program, supra, at 

6). On average, thirty-two of those minutes were the time it 

took for a police officer to connect with a judge on the phone, 

a process that was facilitated by the county prosecutor’s office 

via a central communications dispatch system. Pilot Program, 

supra, at 6. Focusing on that length of time in particular, the 

State asserts that the pilot program’s failure to meet its 
19

target time is attributable to “the human components of any 

telephonic warrant system,” especially the fact that “judges in 

this State are not like customer service representatives . . . 

they are not standing by 24/7 to take calls from police and 

prosecutors.” 

Although the fifty-nine minute average time to obtain a 

warrant exceeded the Special Committee’s outer-limit target by 

fourteen minutes, that fact does not lead inevitably to the 

conclusion that a telephonic warrant program in New Jersey is 

impracticable. The Burlington Vicinage pilot program was just 

that: a pilot program, one goal of which was to test the 

initial recommendations of the Special Committee Report. It was 

not a test by which the viability of telephonic warrants in New 

Jersey should decidedly pass or fail. See Special Committee 

Report, supra, at iv (“If the number of requests for telephonic 

search warrants exceeds the ability of the current emergent duty 

system to handle them, another system should be implemented as 

quickly as possible.”). By the State’s analysis, because the 

precise approach taken three years ago in a six-month pilot 

program exceeded its target time by fourteen minutes, telephonic 

warrants are impracticable.4 That line of thinking ignores the 

 

4 The majority makes a point of noting that the average time for 

Troop C of the State Police to procure a telephonic warrant was 

between 1.5 and two hours. Ante at ___ (slip op. at 35). 

However, that statistic is the average only for Troop C, and was 
20

fact that “the human components of any telephonic warrant 

system” are not static, but rather a function of the practices 

and procedures that human beings design and implement, as well 

as the will and energy they put into doing so. 

Properly viewed, the pilot program and its results are a 

mere jumping off point for building a workable telephonic or 

electronic warrant system, or at least trying in earnest to do 

so. The State could have attempted to improve upon the pilot 

program’s approach in the three years since it concluded, but, 

significantly, it points to no evidence of having done so. The 

State also presents no evidence that improvement on the average 

time to obtain a telephonic warrant was impossible or unlikely,5

or that there was no way to adjust the pilot program to make it 

more convenient for all parties involved. To the contrary, it 

would seem that ongoing developments in technology make advances

in efficiency more and more likely. 

 

based on a universe of sixteen applications for telephonic 

warrants. Pilot Program, supra, at 10. It is hardly 

representative of the whole. The average time for the 

Burlington pilot program, based on a total of forty-two 

applications, six of which were from the State Police, was 

fifty-nine minutes. Id. at 6.

 

5 Indeed the ACLU asserts that improvement was occurring; during 

the two months after the pilot program technically ended, but 

for which data was collected, the average time to obtain a 

telephonic warrant had decreased to forty-three minutes. 
21

The fact that New Jersey already has functioning systems to 

telephonically and electronically apply for and obtain temporary 

restraining orders (TROs) in several settings is strong evidence 

that telephonic or electronic warrants can work where there is a 

will to make them work. For example, as the ACLU points out, 

the judiciary and law enforcement have implemented an electronic 

filing system for TROs to protect victims of domestic violence, 

which “allows police to fill out an electronic form, 

teleconference with the judge, and print out the approved TRO in 

moments.” New Jersey Courts Annual Report 2007-2008, at 1, 17, 

available at

http://www.judiciary.state.nj.us/pressrel/ARNJCourts08.pdf; see 

also R. 5:7A(b) (providing that domestic violence TRO may be 

issued “upon sworn oral testimony . . . communicated to the 

judge by telephone, radio or other means of electronic 

communication”). Notably, “[o]n weekends, holidays and other 

times when the court is closed,” Family Part and municipal court 

judges “shall be assigned to accept complaints and issue 

emergency . . . [TROs].” N.J.S.A. 2C:25-28(a). Similarly, “[a]

judge may issue an arrest warrant on sworn oral testimony 

communicated through telephone, radio or other means of 

electronic communication.” R. 3:2-3(b). Restraining orders for 

certain criminal offenders may also be issued through such 

telephonic or electronic communication. N.J.S.A. 2C:35-5.7(a). 
22

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 “ewarrant” system, “police officers can process a search warrant 

in five to 15 minutes. The police officer begins by texting the 

search warrant request directly to the judge on call who then 

reviews the search warrant online, electronically signs the 

warrant, and emails it back to the officer to serve.” State of 

Utah Judiciary, 2014 Annual Report to the Community 8 (2014), 

available at http://www.utcourts.gov/annualreport/2014-

CourtsAnnual.pdf; see also Jason Bergreen, Judges, Cops Dote on 

Quicker Warrant System, Salt Lake Trib. (Dec. 29, 2008, 11:00 

AM), 

http://archive.sltrib.com/article.php?id=11309849&itype=NGPSID.

In Missouri, 2004 and 2010 amendments to that state’s 

“search warrant statute authoriz[e] search warrant applications 

to be made by electronic means and with electronic signatures[,]

permit[ting] e-mail search warrants.” H. Morley Swingle & Lane 
23

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 
24

warrants cannot fairly be viewed as conclusive evidence of the 

impracticability of a telephonic or electronic search warrant 

program in New Jersey. That is particularly so given that the 

pilot program took place in 2011-2012. Technology already has 

evolved since then, and the efforts of other states indicate 

that there were, and are, many more methods to try for quickly 

procuring a warrant, including the use of e-mail, iPads and 

other mobile devices, and electronic signature applications. 

Technology cannot solve every issue, but consistent, concerted 

commitment to maximizing both technological and human resources 

can go a long way. A little creativity and dedication to 

resolving the challenges encountered during the pilot program 

may indeed have gone a long way. But the State’s seeming lack 

of resolve to make telephonic warrants a success cannot and does 

not prove their impracticability. As the ACLU aptly notes, the 

will to develop a workable telephonic or electronic warrant 

program must be derived from Article 1, Paragraph 7 of the New 

Jersey Constitution, and not from individual governmental 

actors.6

 

6 The State adds one more point to its argument that telephonic 

warrants are unworkable. According to the State, the pilot 

program “by its very design, reveals why telephonic warrants are 

not likely to emerge as a viable replacement for the automobile 

exception.” The State contends that “[a]ll of the participants 

in the pilot program understood that police officers would 

continue their post-Pena-Flores practice of requesting motorists

to consent to a search” prior to trying to obtain a telephonic 
25

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. 
26

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. Id.

at 9, 13. For the State Police, consent searches increased from 

nineteen in April 2008 before Pena-Flores to ninety-five in 

April 2009, just a few months after the Pena-Flores decision. 

Ibid. That number steadily increased to 229 consent searches in 

April 2011. Ibid. The State highlights those increases in 

consent-based searches and characterizes them as a negative 

consequence of Pena-Flores. According to the State, the 

increase in consent searches is a negative effect because asking 

for consent to search may be coercive when probable cause is “so 

strong and obvious . . . as to undermine the voluntariness of 
27

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:
28

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. Although courts must 
29

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. 
30

Ante at ___ (slip op. at 45). However, it is not clear that the 

current average of fifty-nine minutes from the Burlington pilot 

program is an inordinate delay. Despite that voiced concern, 

the State does not demonstrate any earnest efforts to improve 

upon the results of the pilot program. Nor does the State 

address how its “fears” are balanced by the fact that law 

enforcement officials must inform people of their right to 

refuse consent in order to carry the State’s burden of showing 

that consent given was truly voluntary. Johnson, supra, 68 N.J.

at 353-54 (holding that essential element of voluntary consent 

is “knowledge of the right to refuse consent”). Indeed, it is 

notable that not a single privacy or civil liberties group 

writes in support of the State’s position as amicus curiae. In 

fact, the ACLU, writing in support of defendant, does not decry 

the increase in consent searches following Pena-Flores as a 

negative unintended consequence of that decision. 

The majority relies on the State’s asserted concern for

motorists’ constitutional rights in the wake of an increase in 

consent searches. However, that concern is suspect in light of 

the fact that the State’s solution is to take away all 

motorists’ ability to first choose to consent by instead giving 

officers a nearly automatic right to search by way of a rote 

automobile exception to the warrant requirement based on 

unreviewed officer belief that probable cause exists. Instead 
31

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 PenaFlores has had (or perhaps will have) the effect of increasing 

“de-policing” and expanding police discretion. The State’s 
32

arguments on those points are equally if not more speculative 

than its arguments about the effects of consent-based searches. 

As to the first, the State contends that when it is 

impractical to get a warrant to search a car, police will 

release motorists even though there is probable cause to search 

their cars, resulting in “de-policing.” Although the 2012 OLEPS 

Study states that “many departments indicated that in the face 

of a denied consent, it was rare to apply for a search warrant,” 

the Study posits that the failure to apply for a warrant could 

have indicated de-policing or lack of probable cause. 2012 

OLEPS Study, supra, at 16. The study contains only speculation

that de-policing was the motivating force behind an officer’s 

decision not to apply for a warrant when a motorist denied 

consent: “Rather than spend the several hours to apply for a 

search warrant and tow a vehicle, officers may have been willing 

to allow motorists to leave without further investigation.” 

Ibid. (emphasis added). In the absence of any data or 

statistics indicating that “de-policing” is in fact occurring, 

such raw speculation is not a basis on which to alter motorists’ 

constitutional rights. 

As to the second, it bears noting that the last point made 

by the State in support of its claims -- that by “forcing 

officers to decide whether it is worth the time and effort to 

obtain a warrant, the Pena-Flores rule has unwittingly enlarged 
33

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 PenaFlores 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 
34

factual bases for overturning Pena-Flores and Cooke are woefully 

inadequate. The State has not carried its burden to justify 

overturning our state constitutional law governing warrantless 

automobile searches and neither is the majority persuasive in 

its analysis that the State has done so. 

IV. 

The majority’s conclusion represents, in essence, a retreat 

to the federal standard for warrantless searches of an 

automobile expressly rejected by the Court in Cooke. 

Ironically, the majority’s step towards the federal standard 

comes at a time when federal jurisprudence is deviating away 

from any per se categories of assumed exigency. See, e.g., 

McNeely, supra, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 

696; Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed.

2d 485 (2009).

In Gant, supra, the United States Supreme Court rejected 

the broad reading of its decision in New York v. Belton, 453 

U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), that would 

permit officers to conduct an automobile search incident to 

arrest, irrespective of whether the area searched was within the 

arrestee’s reach at the time of the search. 556 U.S. at 344, 

129 S. Ct. at 1720, 173 L. Ed. 2d at 497. The Court noted that 

“[c]onstruing Belton broadly to allow vehicle searches incident 

to any arrest would serve no purpose except to provide a police 
35

entitlement, and it is anathema to the Fourth Amendment to 

permit a warrantless search on that basis.” Id. at 347, 129 S. 

Ct. at 1721, 173 L. Ed. 2d at 499 (emphasis added). 

In McNeely, supra, the United States Supreme Court ruled 

that the dissipation of alcohol in the body, without more, did 

not constitute exigency to justify a warrantless blood draw of a 

drunk-driving suspect. ___ U.S. at ___, 133 S. Ct. at 1568, 185 

L. Ed. 2d at 715. In doing so, the Court noted that

the Fourth Amendment will not tolerate 

adoption of an overly broad categorical 

approach that would dilute the warrant 

requirement in a context where significant 

privacy interests are at stake. Moreover, a 

case-by-case approach is hardly unique within 

our Fourth Amendment jurisprudence. Numerous 

police actions are judged based on 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 
36

historically taken in this State to privacy and constitutional 

rights of motorists. I cannot join this backward step. 

I respectfully dissent. 
 SUPREME COURT OF NEW JERSEY

NO. A-9 SEPTEMBER TERM 2014

ON APPEAL FROM Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM L. WITT,

Defendant-Respondent.

DECIDED September 24, 2015

Chief Justice Rabner PRESIDING

OPINION BY Justice Albin 

CONCURRING/DISSENTING OPINION BY 

DISSENTING OPINION BY Justice LaVecchia

CHECKLIST AFFIRM AND 

REMAND DISSENT

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 5 2