Exigency and Warrantless Search | State of New Jersey vs. Witt

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

One of the requirements for conducting a warrantless search is exigency, or to use another word, urgency. The leading case concerning exigency is State v. Pena-Flores in which the Jersey Supreme Court claimed that it was just reaffirming three decades of New Jersey common law which all pointed to an exigency requirement.

Warrantless Vehicle Search After Traffic Stop

In State v. Witt, decided May 21, 2014,, William Witt allegedly drove by an officer who was in the middle of conducting a motor vehicle stop. The issue is the officer claims that he had his high beams on and did not turn them off. This would be a statutory violation had there been oncoming traffic, but the State has not presented any evidence that there was. The officer proceeded to pull over the Defendant and claimed that he appeared drunk. After conducting a field sobriety test which he claimed Defendant failed, the officer placed him under arrest. It was after this arrest that the officer conducted a warrantless vehicle search to look for an open container of alcohol and instead found a weapon.

Exigency Determined Under Totality of Circumstances

State v. Dunlap held that exigency must be determined within the “totality of the circumstances.” If “reasonable” is a legal synonym for someone with common sense, then “totality of the circumstances” just means considering the whole situation. As applied this means that an officer may consider criminal activity in the neighborhood where a vehicle has been stopped, time of day (night time usually raising suspicion), existence of confederates (friends) who may tamper with evidence if it is left in order to obtain a warrant, and officer safety, to name a few. But in the present case the stop was conducted when little traffic was around and there were no friends present to tamper with the potential evidence. The officer was looking for suspected sitting alcohol which does not change its chemical composition. For the trial court and the Superior court on appeal held to suppress the evidence seized.

Conditions for Permissible Warrantless Search

The Attorney General is seeking to overturn Pena-Flores because he claims it has been unworkable and led to negative consequences (i.e. greatly impeded police work). That is for the New Jersey Supreme Court to decide, but for now a warrantless search is only permissible if

  1. the stop is unexpected,
  2. there is probably cause to believe illegal activity is afoot, and
  3. exigent circumstances prevent obtaining a warrant.

The Attorney General set the stage to overturn Pena-Flores through arguing against it in the Superior Court, Appellate Division so they can take it to the Supreme Court on appeal. The Superior Court does not have the power to overturn a New Jersey Supreme Court decision. So, while Pena-Flores and the exigency requirement may come into question in New Jersey’s highest court later, for now State v. Witt simply reaffirmed the holding.

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