State v. Shannon, 2011 WL 1562610 (App. Div. 2011)
Shannon was stopped for speeding. As the trooper approached the car, he could smell marijuana. Another trooper arrived as backup and the car was searched revealing a large quantity of marijuana, cocaine and heroin. Defendant was then placed under arrest, given his Miranda rights, and placed in the back of the police car. The trial judge found that there was probable cause to conduct the search and that exigent circumstances existed.
The main issue on appeal was whether there were sufficient circumstances that ripened into the exigency necessary to conduct a warrantless search. The Appellate Division rejected the finding of exigent circumstances justifying the warrantless search of the vehicle and suppressed the contraband.
Distinguishing Pena-Flores from this case, the Appellate Court considered the following factors in making the exigency determination:
1) There was no indication that the State Trooper lacked sufficient time to obtain a telephonic warrant pursuant to Rule 3:5–3(b);
2) It was not late at night, nor was the police officer impeded by tinted windows. He did not have to look through any windows because the odor of raw marijuana apparently was pungent enough for him to smell.
3) No one approached the vehicle during the stop. Nor was there any suggestion that any confederates were aware of the stop.
4) The officer did not even confiscate the contraband once he located it in the center console, but left it to be later secured. There was no concern that the evidence would not be preserved.
5) The State did not show that it was impracticable to obtain a telephonic warrant or that defendant could not have been placed under arrest.
6) The State did not show that the exigent circumstances were such that “ ‘law enforcement officers [did] not have sufficient time to obtain any form of warrant.’ “ Pena–Flores, supra, 198 N.J. at 30 (emphasis omitted) (quoting State v. Johnson, 193 N.J. 528, 556 n. 7 (2008).
Reversing the trial court’s decision, the Appellate Division held that there was no urgent need for the State Trooper to conduct a full search of the automobile during a daylight stop with another State Trooper assisting while defendant was outside of the vehicle and being watched over by the second trooper. The State made no effort to show that a telephonic warrant could not have been sought with expedition.