The officers were not justified in searching defendant’s auto due to the lack of any exigency and P.C. for such a warrantless motor vehicle stop

            An officer must smell the odor of the illegal substance when they are lawfully in a position from which they could smell the odor. The smell of burnt marijuana, by a trained and experienced officer, emanating from passenger compartment of a legally stopped motor vehicle creates probable cause to believe that a violation of law had been or was being committed and therefore a warrantless search of the vehicle is justified. State v. Judge, 275 N.J. Super. 194 (App. Div. 1994). “An odor of unburned marijuana creates an inference that marijuana is physically present in the vehicle.” State v. Vanderveer, 285 N.J.Super. 475, 479 (App.Div.1995). New Jersey courts do not even require that there be a strong odor of marijuana to justify the search. Judge, 275 N.J. Super. at 203. Probable cause is not “dissipated by some distant possibility” that the burnt marijuana odor in the vehicle was created when marijuana was smoked days earlier. State v. De Simone, 60 N.J. 319, 323 (1972). State v. Guerra, 93 N.J. 146, 150 (1983) (Strong odor of raw unburned marijuana that could not have emanated from small suitcase in an automobile’s interior provided probable cause to state police to search trunk for evidence of contraband).

Exigency and Warrantless Searches

There are two issues here. Initially, if the police actually smelled burnt pot on the defendant, OK. But the inquiry stops once they pat him down and or arrest him at that moment; especially since he was out of the car. Since he was out of the car, calm cooperative, and the officers were apparently not in fear of their safety, and no other criminality was observed, they should have placed him in the police car are arrested him then. Once they detain him, if they had an objectively reasonable belief, based on their observations, that there was additional criminality related to his bag; i.e. observations of drug sales out of the bag, plastic bags sticking out of the bag they should have detained the owner and attempted to obtain a telephonic warrant of the vehicle. With three officers present, there would be no way for the defendant to destroy the alleged evidence in the interim.

Our court has outlined exigency in See State v. Eckel, 185 N.J. 523. Exigency has been defined as circumstances which provide the officer with the heightened concern for his safety or the destruction of evidence. Id. at 534.

The U.S Supreme Court’s 2013 decision in Missouri v. McNeely solidified New Jersey’s standard concerning exigency and warrantless searches.  The decision also overturned prior state case law allowing for nonconsensual blood draws in DWI cases as long as excessive force was not used.  In addition, New Jersey has long chosen to provide its citizens with an expansive interpretation of privacy rights based on the State Constitution and the Chimel justifications laid out by the U.S. Supreme Court in 1969. See State v. Eckel, 185 N.J. 523, 524, 538 (2006). The Chimel justifications render a search of a vehicle or room incident to arrest unconstitutional if a warrant was not obtained when it was possible and practical to do so. Chimel v. California, 395 U.S. 752, 762-63 (1969). The Chimel justifications were later modified in Belton,  when the U.S. Supreme court held that an officer could contemporaneously search a vehicle during an arrest. New York v. Belton, 453 U.S. 454, 459-60, (1981).  Nevertheless, New Jersey declined to adopt Belton for the public policy reasons that because there was no risk to officer safety or destruction of evidence posed by a person already detained outside the vehicle; i.e. no exigency. See State v. Eckel, 185 N.J. at 534.

Warrantless Vehicle Search and New Jersey Law

Hence, presently in New Jersey, a warrantless vehicle search is only upheld by the court if there is probable cause to support an automobile exception, or to search for a weapon when there is an objectively reasonable belief that the defendant could still reach for that weapon. State v. Pierce, 136 N.J. 184, 205 (1994) (where a vehicle search conducted that discovered a revolver and cocaine was held unauthorized when performed after the driver was arrested for driving with a suspended license and the passengers removed). Ironically, our U.S. Supreme Court has since limited Belton holding a warrantless vehicle search post-arrest is only acceptable if the defendant is within reaching distance of the vehicle or if there is reason to believe there is evidence related to the reason for the arrest at risk of destruction. Davis v. United States, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011). So a search for a weapon or drugs would not be related to an arrest for driving with a suspended license. Nevertheless, New Jersey still follows the even more expansive interpretation of privacy rights in Pierce and reaffirmed it in Eckel.

When the U.S. Supreme Court was presented with the question of exigency as applied to whether a warrant requirement was necessary in DWI cases it held the ‘natural spoliation’ of blood alcohol levels over time does not create per se exigency that would negate the warrant requirement. Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). In New Jersey because drawing of blood is considered a search and seizure, State v. Ravotto, 169 N.J. 227, 247 (2001), exigent circumstances must be present in order to over ride the need for a judicial approved search warrant. State v. Dunlap, 185 N.J. 543, 549 (2006).

As well, according to Const. art. I, ¶ 7 and Pena-Flores the warrantless search of  a vehicle is permissible where the stop is unexpected, the police have probable cause to believe that the vehicle contains evidence of a crime, and exigent circumstances exist under which it is impracticable to obtain a warrant. State v. Pena-Flores, 198 N.J. 6, 28-29 (2009).  The State has the burden of proving these elements exist. Id. Under recent reiterations and extensions of New Jersey case law, exigent circumstances are to be determined on a case-by-case basis. Id. at 14 (where exigency could not be found based on the safety of the officers or in order to preserve evidence in a vehicle since both defendants were in custody); State v. Dunlap, 185 N.J. 532, 551 (2006). The same is also true in the case of home searches. State v. Witczak, 421 N.J. Super. 180, 197-98 (App. Div. 2011)(where a warrantless search of a home for weapons did not meet exigency requirement after defendant willingly exited is home at the officer’s request).

Due to the advent of telephonic warrants there are few situations where it is truly impracticable to obtain a warrant. State v. Shannon, 419 N.J. Super. 235, 243 (App. Div. 2011)(where the denial of a motion to suppress evidence was reversed because no exigency existed when defendant motorist was cooperative with police, stop did not occur late at night, and was in a residential area). Exigency will only apply in extreme scenarios as the word by definition refers to something urgent. State v. Minitee, 210 N.J. 307, 322 (2012)(where it was held that police did face exigent circumstances when searching a vehicle that had been used in an armed robbery where at least two perpetrators were on the run, possibly armed, and a hasty search would not be sufficient to find clues to their identity and location necessary to protect the public). Significantly, and again almost identical to the Rule of Procedure reached by the McNeely Court when they addressed the question of exigency and warrantless consent, New Jersey’s case-by-case evaluation requires the trial court to conduct a fact intensive inquiry into the totality of the circumstances to determine whether a sufficient emergency existed such that a warrant could not reasonably be acquired prior to a search or seizure. State v. Pena-Flores, 198 N.J. at 28; State v. Dunlap, 185 N.J. at 551; State v. Cooke, 163 N.J. 657, 675 (2000). Thus, the holding of McNeely aligns directly to the extant state law of New Jersey regarding exigent circumstances.

Clearly, there are few situations in which the exigency of circumstances are great enough to legally permit the officers to bypass a judge-issued warrant. This bypass will be especially difficult to justify in motor vehicle stops that occur during daylight or early evening hours, in which there is only one occupant and they are detained, in which all occupants are detained, where the defendant is cooperative, where there is more than one officer present on the scene, or any other situation where there is neither a risk to the officer nor potential evidence itself. On the other hand, if there is a reasonable belief that the vehicle is part of an ongoing crime, if there is evidence within the vehicle that is potentially dangerous to the public and it cannot be secured, or if there is a danger to officer safety, the exigency requirement may be met.  It must be remembered that evidence that is in plain view or smell will likely not be protected by the exigency requirement but this requirement does protect a defendant from a further warrantless search.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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