Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
This is the third blog in a series of blogs about the recent N.J. Supreme Court decision in State v. Witt—one of the most controversial cases in recent memory. The last two blogs discussed the facts of the case, and the history of case law in New Jersey surrounding probable cause to search a vehicle. This blog will cut to the chase and explain the new standard. As previously explained, the standard in New Jersey used to be greater than the federal standard, and that of most other states. In addition to possessing probable cause to search a vehicle, an officer had to show that exigent circumstances existed. State v. Witt essentially overturned Pena-Flores and returned to the standard set forth in the 1981 case State v. Alston. In convincing the Court to abandon the exigency requirement in vehicle searches the State raised the following points:
- What counts as ‘exigent’ is too subjective of a question
- This subjectivity led to inconsistent results
- Telephonic warrants take too long
- Instead of getting warrants officers were conducting ‘consent’ searches that may have been coerced
- Impounding a car in order to obtain a warrant is a greater intrusion than a probable cause search
While the majority found these points persuasive, not all are convinced. It should be noted that the ACLU opposed the overturning of Pena-Flores because they feel it will greatly erode protections from police intrusion. As the dissent points out, the return to Alston is not truly an abandonment of the exigency requirement but rather assumes a per se exigency simply because a car can be moved, but not taking into account the specific circumstance of whether it realistically would be moved. Justice LaVecchia used strong words in his opposition of the majority opinion and wrote “this is not a proud day in the history of this Court.” Nevertheless, the majority agreed with the points raised by the State, especially the subjectivity, inconsistent application, and overuse of consent searches.
It is important to point out that although Alston is a decision from 1981, the return to Alston is treated as a new rule of law, and will be applied prospectively from the date of the opinion, September 24, 2015. This means Pena-Flores is still ‘good’ law in the litigation of cases before that date, and this decision cannot be applied retroactively.