State v. DeShazo, WL 1562246 (App. Div. 2011)

DeShazo was arrested in Egg Harbor Township driving a car with Virginia plates and a broken out rear window. The officer thought the car might be stolen but could not immediately confirm it. The officer was told that DeShazo was the victim of a shooting and kept a weapon in the center console of his vehicle. The officer searched the car and found a gun. The trial judge denied the defendant’s motion to suppress evidence. Defendant appealed and the Appellate Court reversed.

Under State v. Pena–Flores, 198 N.J. 6, 28 (2009), a “warrantless search of an automobile” is permitted “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.”

The court found no exigent circumstances existed because:

1) This was a daylight search;
2) The three officers outnumbered defendant and his passenger.
3) The officers could have had the car towed to a secure location and escorted defendant and the passenger to the police station until a driver with a license could come to the station to operate the vehicle for defendant. Once the vehicle was at the station, the officers could have secured a search warrant.
4) There was no explanation why a telephonic warrant could not have been pursued, either at the station or at the roadside.
5) the search was extensive, including accessing the trunk from the passenger’s compartment by pulling the cord hanging down from the backseat, which brought the rear seat flat to the seated portion of the vehicle. We are persuaded that exigent circumstances did not exist to allow a warrantless search of the automobile driven by defendant.

The Court of Appeals reversed and remanded.