New Jersey Criminal Defense Law Blog : New Jersey Criminal Defense Lawyer & Attorney : John Marshall Law Firm : Drug Crimes, Domestic Violence : Monmouth, Middlesex & Union Counties

If a vehicle is to be impounded in New Jersey, does a driver or passenger have the right to remove personal possessions from the vehicle before the impoundment or inventory search? According to the New Jersey Supreme Court, occupants of an impounded motor vehicle maintain the right to make suitable arrangements for their personal possessions prior to an inventory search of an impounded motor vehicle. In State v. Mangold, the Court held that police have an affirmative duty to provide the vehicle's occupants a reasonable opportunity to remove personal effects from an impounded motor vehicle prior to an inventory search. This assumes that the owner or other responsible individual is present at the time of the lawful impoundment. If this is the case, absent consent by the owner or other responsible party, the impounded vehicle may not be subject to an inventory search. In such cases, the owner or other responsible person will be presumed to have assumed the risk for any claims of loss or theft arising from the impoundment.

The rights afforded to the owners and operators of motor vehicles that are subject to an inventory search following an impoundment are based on Article 1, paragraph 7 of the New Jersey Constitution and are intended to afford people in New Jersey enhanced protection. Both the initial impoundment and the subsequent inventory search must be lawful. Also, the enhanced protections under the New Jersey Constitution apply even when the vehicle is impounded for the purpose of civil forfeiture.

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The New Jersey view on impounding vehicles and inventory searches concerns the procedures surrounding the impoundment of a motor vehicle. New Jersey police must give the driver of the car a reasonable opportunity to make arrangements for the care of the vehicle before the police may impound it and conduct an inventory search. This rule applies regardless of whether the driver is to be taken into custody for a violation of law or the driver simply receives a ticket for the violation. Unless the driver gives his or her voluntary consent to the impoundment, the police must first give him or her an opportunity to make arrangements for the care of the vehicle.

Typically, if the driver is stopped by the police and is unable to continue his operation (because he is driving on a suspended license or because there is a bench warrant out for his arrest) the police must give the driver an opportunity to make arrangements for the care of the vehicle. The driver can arrange for a substitute driver to take the vehicle and the police may permit the operator to safely and legally park the vehicle rather than having it impounded.

Certain statutes provide police with authority to impound motor vehicles. For example, N.J.S.A. 39:3-4 authorizes police officers to remove any unregistered vehicle from a public highway. Also, police may remove from the roadway any disabled or unattended vehicle that blocks traffic. This statutory authority comes from N.J.S.A. 39:4-136. As long as the proper procedures are followed for a valid impoundment and inventory search, this is a valid exception to the warrant requirement.

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As part of the community caretaking function, police departments frequently impound motor vehicles for reasons other than law enforcement. Motor vehicle accidents may leave vehicles in a spot where they block traffic or constitute a dange to the driving public. Also, improperly parked vehicles are sometimes removed from the highway for public safety reasons. Motor vehicles are also impounded by the police for law enforcement purposes. The vehicles may be unregistered or uninsured. They may contain evidence of a crime or the car itself may be connected to illegal activity. Police routinely conduct an inventory search of a motor vehicle after it is taken into custody.

The inventory search is conducted for multiple reasons. First, the police have an obligation to protect the owner's property while the vehicle remains in police custody. Police departments also need to protect themselves against unwarranted claims or disputes over lost, damaged, or stolen property. The US Supreme Court has viewed inventory searches as a result of a lawful impoundment of a motor vehicle to be reasonable under the Fourth Amendment to the US Constitution. This is, therefore, another valid exception to the warrant requirement and constitutes a valid warrantless search under the Constitution.

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The United States Supreme Court has authorized exterior searches for vehicle identification numbers (VIN). This issue was analyzed in New York v. Class, 475 U.S. 106 (1986). In this case, New York City police officers stopped a vehicle for speeding. The vehicle also had a cracked windshied which is a violation of New York law. The defendant exited the vehicle and provided the police with proof of registration and insurance but no driver's license.One of the officers involved in the stop opened the door to examine the VIN, which was located on the left doorjamb of the vehicle. When the officer did not find the VIN there, he reached into the interior of the car in order to move some papers that were obstructing the area of the dashboard where the VIN is located on late model automobiles. When the officer did so, the officer saw the handle of a gun protruding from under the driver's seat. The weapon was immediately seized and the defendant was arrested.

The Supreme Court held that the VIN is a vital component in the regulation of automobiles. As such, motorists should expect a substantially diminished expectation of privacy in the VIN numbers to their vehicles. This is especially true of a driver who has committed a traffic violation. Since the VIN is generally accessible and visible from the exterior of the vehicle, an examination may not even constitute a search. Since there is no expectation of privacy in the VIN, no showing of probable cause or reasonable suspicion of a violation of law is necessary for an examination from the exterior of the vehicle for this number. The Supreme Court found that it makes no difference that papers in the defendant's car obscured the VIN number from plain view. The Court held that efforts to restrict access to a particular area do not generate a reasonable expectation of privacy where none would otherwise exist.

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Under New Jersey law, there is no exception to the warrant requirement that will justify a search of a motor vehicle for driving credentials. Absent a specific recognized exception to the warrant requirement (such as a search incident to arrest or consent search), police may not conduct vehicle searches to locate a motorist's driver's license, registration, insurance card, or other necessary driving documents. This was the holding by the New Jersey Supreme Court in State v. Lark, 163 N.J. 294 (2000). Typically, in a credentials case, the police are confronted by a motorist who cannot produce his or her license, registration, or current insurance card. The police have a duty and responsibility to determine if the motorist is properly licensed, that the vehicle is not stolen, and that the vehicle is properly insured. The police are entitled to detain the motorist for this purpose. If the driver conceals their identity and there is no other alternative, the police may take the driver into custody. Presumably, the police could then impound the vehicle and conduct an inventory search (one of the exceptions to the warrant requirement).

Prior case law suggesting that police could conduct motor vehicle document searches as an aid to the motorist, so long as the search was limited to those areas where driving credentials are normally kept, such as a visor, center console, or glove compartment, has been overruled.

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Many police vehicles have computers now known as mobile data terminals (MDTs). These laptop sized computers permit the officer to perform rapid searches of law enforcement databases. In addition to information concerning active criminal and traffic warrants, the MDT also provides basic information about motorists. By typing in the license plate number, the MDT provides information concerning vehicle registration and whether the owner of the vehicle is legally licensed to drive in New Jersey.

The question arises whether a MDT report of a problem with the vehicle registration or the owner's driver's license constitutes a sufficient legal justification to effect a motor vehicle stop. The New Jersey Supreme Court answered this question in State v. Donis, 157 N.J. 44 (1998). The court held that motorists have no expectation of privacy in their license plates or associated numbers. The plates are always located on the outside of the vehicle and must be easily viewable. On the other hand, there is an expectation of privacy with regard to information associated with the license plate number. Data such as the home address, social security number, and name of the owner of the vehicle are protected by both state and federal law.

In order to balance these competing interests, the New Jersey Supreme Court in Donis created a two step process to be performed by law enforcement. Police are permitted to randomly enter license plates numbers into the MDT. The system will report back basic information regarding the registration status of the vehicle, the driver's license status of the owner, and whether the vehicle has been reported lost or stolen. Other personal information about the owner may not be displayed in the first step. If the data received during the first step warrants further investigation (because the vehicle is not registered or the owner's license is suspended), the police are permitted to access personal information through the MDT. This may include the owner's name and address, social security number, and criminal record. The Supreme Court has ordered that when the police do not receive evidence of problems with the vehicle or the driver, they may not proceed to step two and access personal information.

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The New Jersey Supreme Court has also recognized the existence of the community caretaking exception to the warrant requirement. Most of these scenarios concern fact patterns where individuals are driving extremely slow late at night leading officers to believe something is wrong. In these situations, it is reasonable for officers to believe that something is wrong with the car, something is wrong with the driver, or that the vehicle could constitute a hazard to other motorists. Each of these situations is justified under the community caretaking exception to the warrant requirement.

In State v. Washington, 296 N.J. Super 569 (App. Div. 1997), the observations of the arresting officer involved a vehicle that was weaving within the lane of travel and proceeding at a speed which was nine miles per hour below the posted speed limit. The court ruled that the traffic stop of the vehicle was justified based on the community caretaking exception. The court noted that the objective basis upon which to consider traffic stops under this exception is based upon the totality of the circumstances. Although weaving within the lane may not technically be a motor vehicle violation, the driving conduct offers sufficient justification for the officer to conduct a motor vehicle stop. Vehicles operated in this manner may constitute a danger to other motorists. In addition, there may be something wrong with the driver or the vehicle itself.

Apart from the drunk driving context, New Jersey case law has held that the community caretaking exception will also justify a limited search based on concerns for public safety. In State v. Diloreto, 180 N.J. 264 (2004), the New Jersey Supreme Court ruled that the police were justified in performing a pat-down search of a purportedly missing and endangered person. The justification for the search was based on the officers concerns that the endangered person might seek to injure himself or the police.

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The United States Supreme Court first created the community caretaking exception to the warrant requirement in the case of Cady v. Dombrowski, 413 U.S. 433 (1973). This case involved a drunk driving investigation by members of a local police department in Wisconsin. The defendant in this case was a Chicago police officer who had been involved in an accident. The vehicle he was using had become disabled as a result of the accident and had been towed away. During their investigation of the accident, the police officers became aware of the defendant's status as a member of the Chicago P.D. They conducted two searches of the vehicle believing that the officer was required to carry a gun with him at all times, even when he is off duty. The first search was conducted at the scene and the second was conducted at the garage where the vehicle had been towed. The purpose of these searches was to recover the weapon as a matter of public safety. The local police maintained standard procedures for these types of searches. During the course of their search for the gun, the police discovered evidence that tied the defendant to a homicide.

The USSC upheld the search as valid under the community caretaking exception to the warrant requirement. Ordinarily, the search with be administrative in nature and will involve a vehicle that is disabled or has been abandoned on the highway. The search is not based upon an effort to find evidence of a crime, but rather to perform an administrative function per established departmental procedures, such as accounting for and safeguarding property or determining ownership of the vehicle in question.

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Now that we have examined the requirements of a consent search in New Jersey, we must now consider the scope of the consent search once consent is validly given. A police officer conducting a motor vehicle search by consent may search the vehicle as thoroughly as if he or she had a search warrant within the confines of the consent. State v. Santana, 215 N.J. Super 63 (App. Div. 1987). The person granting consent may limit the search both in terms of area and time. Florida v. Jimeno, 500 U.S. 248 (1991). The consent to search may also be withdrawn at any time by the person so consenting. However, should the officer uncover something during the course of a consent search, which gives the officer probable cause to believe evidence of a crime or contraband can be found in the vehicle, the search may continue under the automobile exception to the warrant requirement which I have previously discussed.

If the consent gives the officer permission to search the trunk of the vehicle, the trunk may be searched. However, it must be explicitly understood between the officer and the person giving consent that a search of the trunk is within the scope of the consent given. In State v. Leslie, 338 N.J. Super 269 (App. Div. 2001), the search of the defendant's trunk was not explicitly stated in the consent and the drugs recovered from the trunk during the search were suppressed. An express, valid consent may also permit the search of closed containers and other areas not easily accessible in the vehicle.

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The State is required to prove two elements during a hearing on a motion to suppress evidence, where the issue is one of consent. First, the State must prove by clear and convincing testimony that consent was freely, knowingly, and voluntarily given. This evidence should include proof that the defendant knew that he or she had the right to refuse to grant consent for the search. This can be shown through a written consent to search form, video evidence, or direct testimony from the police officer. The proofs only require knowledge to refuse consent on the part of the defendant, not that the police actually informed the defendant of this important right.

The second element of proof in the motor vehicle context is the requirement that the police justify the reason they sought consent to search in the first place. The request must be based upon a reasonable and articulable suspicion that evidence of a crime or contraband could be found within the motor vehicle. This can be proven through direct or circumstantial evidence. The conclusions made by the officer at the time of the request for consent must be based on a totality of the circumstances. The information available to the officer and the rational inferences to which they create must lead the officer to suspect that criminal evidence exists in the vehicle. Absent clear proofs on both of these issues, the incriminating evidence that was obtained through a consent search must be suppressed.

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New Jersey law differs significantly from federal law on the issue of motor vehicle searches undertaken by consent of the driver. Article 1, paragraph 7 of the New Jersey Constitution provides more protection to individuals than the comparable provisions of the 4th amendment to the US Constitution.

In Schneckloth v. Bustamonte, the US Supreme Court ruled that when a subject of a search is not in custody and the prosecutions seeks to justify the search on the basis of the subject's consent, the 4th and 14th Amendments to the US Constitution require that the State demonstrate that the consent was voluntarily given. The State must also show that the consent was not the product of threats, coercion, or duress. While the subject's knowledge of his or her right to refuse consent is a factor that the court may consider on the issue of voluntariness, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.

This is not the law in New Jersey. Under our state constitution, the prosecution must prove not only the voluntary nature of the consent, but also that the defendant knew of his or her right to refuse to give consent to the search.

Furthermore, in the motor vehicle context, there is an additional requirement that must be met under New Jersey law. In order to seek the consent of a subject to conduct a search of a motor vehicle during a routine traffic stop, the law enforcement officer must have at least an articulable suspicion that evidence of a crime or a contraband may be found in the vehicle. This additional requirement in the motor vehicle context is also a product of an appellate decision interpreting Article I, paragraph 7 of the New Jersey Constitution to provide greater protection against unreasonable searches and seizures than the 4th amendment provides.

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Central to the court's analysis in State v. Smith, 134 N.J. 599 (1994), was the fact that normally a passenger will not have committed any motor vehicle violation. Of course, this may not always be the case. There are numerous violations that passengers can commit. For example, failure to wear a seatbelt while seated in the front of a motor vehicle constitutes a violation of New Jersey law. In a similar manner, passengers may be liable under the motor vehicle laws when they, as licensed drivers, permit the operation of a motor vehicle by a person under the age of 17 with an examination permit. Passengers can also be liable for permitting intoxicated drivers to operate a motor vehicle that is either owned or within the custody or control of the passenger. In fact, a passenger who permits his or her motor vehicle to be operated without liability insurance is strictly liable under the state's compulsory insurance laws.

In those cases in which the passenger has actually committed a motor vehicle offense themselves, it seems that the investigating officer has the power to lawfully order them to exit the vehicle under the Mimms analysis. This was the holding in State v. Legette. This was decided three months after the New Jersey Supreme Court's decision in Smith, and the court decided that the police could order a passenger to exit a vehicle where he was about to receive a ticket for failure to wear a seatbelt. State v. Legette, 274 N.J. Super 278 (1994). Under the court's reasoning in Legette, a police officer may order passengers to exit a vehicle whenever the passenger has independently violated a provision of the motor vehicle or criminal laws.

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The New Jersey Supreme Court considered whether the Mimms rule applied to passengers in New Jersey as well in State v. Smith, 134 N.J. 599 (1994). The Court found that ordering a passenger out of a vehicle is different from ordering a driver to get out of the vehicle because the passenger has not engaged in the culpable conduct that resulted in the vehicle stop. The court found that an order to exit a vehicle during the course of a routine motor vehicle stop constitutes a greater intrusion on the passenger's liberty than on the driver's. Because the passenger has not normally engaged in an obvious violation of the law, he or she has a legitimate expectation that no further inconvenience will occur other than the delay of a lawful stop of a driver. Accordingly, the court recognized a distinction between the privacy expectations of passengers and drivers and found that the passenger's privacy interest is greater than that of the driver. The Court ruled that in order for an officer to require a passenger to exit a motor vehicle during a lawful stop, the officer must be able to identify specific and articulable facts that would warrant heightened caution to justify ordering passengers out of a vehicle detained for a traffic stop. The officer needs to establish some facts considered in the totality of the circumstances that would create a heightened awareness of danger for the officer.

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There is a distinction in New Jersey between orders by a law enforcement officer for operators and passengers of a vehicle to exit the vehicle during a motor vehicle stop. With respect to operators of a motor vehicle, New Jersey follows the federal position that police are free to use their discretion to order a driver from the vehicle during the course of a motor vehicle stop. This comes from the federal case of Pennsylvania v. Mimms, 434 U.S. 106 (1977). Critical to this United States Supreme Court decision is the concerns for issues of officer safety during traffic stops. Weighing the potential for death or bodily injury to police during traffic stops against the inconvenience to motorists, the court found that the intrusion can only be described as de minimis (minimal). Essentially, this decision creates a bright line rule that police may require drivers to exit their vehicles during a motor vehicle stop without any justification.

With respect to drivers, the New Jersey Supreme Court has found this decision to be consistent with the New Jersey Constitution. In State v. Smith, the court that that the Mimms test is constitutional under the New Jersey Constitution. State v. Smith, 134 N.J. 599 (1994). The Court adopted the reasoning of the USSC and found that, in contrast to the minimal intrustion on a person's privacy, a police officer's safety is greatly enhanced when an officer can order a driver out of the car.

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In the New Jersey Supreme Court case of State v. Pierce, the Court limited the application of the Belton rule. State v. Pierce, 136 N.J. 184 (1994). The Court held that the Belton rule of permitting searches incident to a lawful arrest during a motor vehicle stop would not apply in New Jersey in those situations where the underlying reason for the arrest was a violation of the motor vehicle laws. Fearing that the statute could be used by police to effect arrests on the slightest pretext and use the opportunity to search vehicles under the Belton rule, the justices declared that searches under Belton shall not apply to warrantless arrests for motor vehicle offenses. Finally, in State v. Eckel, the New Jersey Supreme Court held that, under the New Jersey Constitution, Belton would no longer apply. State v. Eckel, 185 N.J. 523 (2006). With this decision, New Jersey police officers lost the option of searching a motor vehicle incident to the arrest of one of the vehicle's occupants.

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Search incident to a lawful arrest is another exception to the requirement that police obtain a warrant before executing a search. New Jersey law on this exception has been interpreted to provide New Jersey drivers with more protection under the state constitution than they would receive under the US Constitution.

In Chimel v. California, 395 U.S. 752 (1969), the US Supreme Court ruled that when police effect an arrest, they are entitled to conduct an immediate search of the person so arrested in order to remove any evidence that could be used to resist arrest, effect an escape, or cause injury to the arresting officers or others. The court also held that the object of the search incident to an arrest could include evidence: fruits and instrumentalities of crime that may be secreted on the arrestee's person. The scope of the search was not limited by the Court to the person of the individual being arrested, but included the area within the immediate control of the person ("within the person's wingspan").

Twenty years after the Chimel decision, the Court created a bright line rule for searches incident to arrest in the context of a motor vehicle stop. In New York v. Belton, the US Supreme Court held that when a police officer effects a lawful arrest of the occupant of a motor vehicle, the officer may, incident to that arrest, search the passenger compartment of the vehicle. New York v. Belton, 453 U.S. 454 (1981). A motor vehicle may contain weapons which the arrestee may use to resist arrest or to injure police. The vehicle may also contain evidence that the arrestee may attempt to destroy or conceal. The police are permitted to search any closed containers within the passenger compartment to which the arrestee may have access. However, the Court was careful to exclude the trunk of the vehicle which may not be searched incident to arrest. Boxes, luggage, bags, and clothing are subject to search if they are within the passenger compartment.

The search of the vehicle should occur immediately after the arrest. It is acceptable that before the search is conducted, the defendant is secured in restraints and placed in a police car where they will not have access to evidence and cannot threaten the safety of the officers while they effectuate the valid search.

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The search of the interior of the vehicle under the "Terry" stop and frisk exception to the warrant requirement is limited. The object of the search is weapons or other objects that could harm the police officer or others. Accordingly, when searching the interior passenger compartment of the vehicle, the police may only search those areas where a weapon may be placed or hidden. A limited protective search for hidden weapons under the seats, within seat cushions, in the glove compartment, under car mats, and other readily accessbile areas in the vehicle are justified. On the other hand, searches of the trunk or locked containers within the vehicle are not justified under this exception to the warrant requirement because these hidden weapons are not readily accessible to suspects.

The New Jersey Supreme Court adopted the Michigan v. Long analysis in State v. Lund, 119 N.J. 35 (1990). The protective search is judged by whether a reasonably prudent person would be warranted in the belief that his or her safety or that of others was in danger. The measure of reasonabless is held to an objective standard.

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There are dangers police officers face when executing routine traffic stops. In Pennsylvania v. Mimms, the United States Supreme Court held that police may order persons out of a motor vehicle during a traffic stop and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous. Pennsylvania v. Mimms, 434 U.S. 106 (1977). The Court decided the grounds upon which the police could conduct a protective search of the passenger compartment of a motor vehicle in the landmark decision of Michigan v. Long, 463 U.S. 1032 (1983). The Court held that a police officer may conduct a limited search of the passenger compartment of a motor vehicle provided that he or she possesses a reasonable belief based on specific and articulable facts which reasonably warrant the officer believing that the suspect is dangerous and may gain access to weapons. Essentially, this is a Terry stop and frisk of a motor vehicle. The officers, under the Long decision, can conduct a frisk of a motor vehicle for weapons during a routine traffic stop if they have a reasonable suspicion based on specific articulable facts that the individuals in the automobile are dangerous.

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In determining whether the state has met the two pronged test under the automobile exception to the warrant requirement, the first issue that must be proven is probable cause (prong one of the analysis). The state will be required to show that the police officers conducting the search possessed a well-grounded suspicion that the vehicle contained either contraband or evidence of a crime. The state must then establish prong two, that there were exigent circumstances that made it impractical to secure a search warrant. Exigent circumstances have been described by the New Jersey Supreme Court as unforeseen and spontaneous circumstances giving rise to probable cause. State v. Alston, 88 N.J. 211 (1981). The events surrounding the incident may occur swiftly. Immediate police action is required or else the evidence may be lost. The vehicle itself may be moved. There may be other suspects waiting to become involved in the criminal enterprise. The police may be unable to immediately leave their positions or secure additional officers to guard the vehicle in question. All of these may lead to the exigent circumstances necessary to establish the second prong of the analysis under the automobile exception to the warrant requirement.

The New Jersey Supreme Court recognizes that the term "exigent circumstances" is inexact and incapable of precise definition. In determining whether exigent circumstances exist, examine the facts of the case and look for elements of rapidly unfolding, unpredictable events which may cause the loss or destruction of evidence and make it impractical for the police to obtain a search warrant. If both prongs of the test are met, the scope of the warrantless search under the automobile exception is defined by the object of the search and the place where there is probable cause to believe it may be found. This may involve searches of the trunk, the interior of the vehicle, and any closed containers that may be inside the vehicle.

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There were arguments at the New Jersey Supreme Court this past Monday over the state's new drunk driving test, the Alcotest. The state Supreme Court judges must put their stamp of approval on the machine for it to go live statewide. For them to do so, they must determine that it is scientifically reliable enough to be used in DWI prosecutions in New Jersey. The Alcotest 7110, which would replace the Breathalyzer which has been in use since the 1950s, has been used in 17 counties since early 2006. The New Jersey Supreme Court has stayed sentencing pending its review of the machine's reliability. As many as 7,800 defendants in DWI cases based on the Alcotest are awaiting the Court's ruling on the machine's reliability. In November, Special Master Michael Patrick King concluded, based on a voluminous fact-finding record, that the Alcotest is scientifically reliable for evidentiary purposes, subject to safeguards meant to compensate for software flaws. It was his second report recommending implementation, and Monday was the Court's second hearing on whether to adopt King's recommendation.

There are experts that contend that errors in Alcotest readings are still possible due to software and mechanical issues. The Alcotest performs two tests on each breath sample, using electrochemical and infrared technology, but the electrochemical test tends to become less accurate over time due to fuel-cell depletion. The device is programmed to compensate by using the infrared value to compute the electrochemical result. King recommended that the device be calibrated for accuracy and its fuel cell replaced, if necessary, every six months--twice as often as the annual tune-up he originally suggested.

It will be interesting to see how the Court finally rules on this crucial issue in New Jersey DWI law.

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The New Jersey Supreme Court recently heard the case of State v. Scott on January 10, 2008. The Court held that ample evidence supported the conclusion that the passenger in the vehicle possessed the controlled dangerous substance (CDS) found in the car. The facts of the case are as follows:

In the early morning hours, Paterson police officers pulled over a car being driven without the headlights on and in an erratic manner. It was being driven by Shariffe Parks; defendant Morgan Scott was a front seat passenger. After detecting a strong odor of marijuana and learning that Parks did not have a driver's license, the officers asked him (the passenger) to exit the vehicle. The officers flashed their lights inside the car and saw a large plastic bag on the floor which they believed to contain drugs. Tests later revealed that the bag contained crack cocaine and marijuana. The driver and the passenger were convicted of possession of cocaine and marijuana. On appeal, the Appellate Division agreed with the trial court that there was sufficient evidence to support actual or constructive possession. The court stated that possession cannot be based on mere presence at the place where the contraband is located; there must be other circumstances that permit an inference of defendant's control of the contraband. Criminal possession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time, accompanied by the knowledge of its character. Here, the court noted that the drugs were in plain view on the floor of the car in front of the driver's seat.

The court also found that the odor of marijuana, the testimony that it was customary for drug dealers to work in teams, and the permissible inference that the occupants were trying to figure out where to hide the drugs when they continued to drive for several blocks after the officers activated their overhead lights supported the trial court's decision to deny the defendant's motion for acquittal.

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The discovery of evidence during a lawfully executed traffic stop or warrantless search under the plain view exception to the warrant requirement is not necessarily limited to what the police officer sees. New Jersey has also adopted the "plain smell" doctrine. In the typical plain smell case, the officer will effect a motor vehicle stop and detect some odor that will provide him or her with probable cause to believe that an offense has been or is being committed. Common examples are the smell of marijuana (burning or otherwise) coming from inside the vehicle or the odor of alcohol on the breath of the operator or passengers within the vehicle. If the officer's conduct in performing the search meets the three requirements under the plain view exception (as discussed in a previous article), a suspicious odor may provide sufficient probable cause to invoke a more thorough search under the automobile exception. Briefly, the three requirements under the plain view exception in New Jersey are

1) at the time of the viewing of the evidence, the officer was in a location where he or she had a legal right to be;

2) the officer discovered the evidence inadvertently, meaning that he or she did not know in advance where the evidence was located and did not intend to beforehand seize it; and

3) there was probable cause to associate the items seen in plain view with evidence of criminal activity.

If these three prongs are met, a suspicious smell is sufficient to create probable cause for a warrantless search of a motor vehicle under the automobile exception.

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There are several exceptions to the requirement that the police obtain a warrant to search an area such as a house or a vehicle. One of these exceptions that I have previously discussed is the plain view doctrine. Another exception to the requirement that the police obtain a warrant is the automobile exception. Article 1, paragraph 7 of the New Jersey Constitution has often been interpreted by the New Jersey Supreme Court to provide more protection in various aspects of arrest, search, and seizure law than does the Fourth Amendment to the US Constitution. This is the case with regard to the automobile exception to the warrant requirement. Under federal law, the Court requires merely that probable cause exists to believe that a vehicle contains evidence of a crime. Pennsylvania v. Labron, 518 U.S. 938. If this is the case, there is sufficient justification to conduct a search without a warrant.

This view is not shared by the New Jersey Supreme Court. In State v. Cooke, the court ruled that Article I, paragraph 7 of the New Jersey Constitution requires a finding of both probable cause and exigent circumstances in order to support a warrantless search under the automobile exception to the warrant requirement. The exigent circumstances must make it impractical that the police obtain a valid search warrant.

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As I said in my previous article, New Jersey has yet to drop the inadvertence requirement from the plain view analysis as was done by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990). This issue was first presented to the Appellate Division in State v. Damplias, 282 N.J. Super 471 (1995). However, the court declined to rule on whether the inadvertence requirement (the second prong of the test) is still an essential element under Article I, Paragraph 7 of the New Jersey Constitution. The court simply noted that the test for inadvertence has two prongs: 1) Did the police know in advance where the evidence was located? 2) Did the police intend beforehand to seize the evidence? If the answer to both questions is yes, then the discovery of the evidence is not inadvertent and the plain view exception does not apply. However, if the answer to the first prong is yes and the answer to the second prong is no, the the inadvertence requirement is satisfied. Seven years later, the New Jersey Supreme Court had an opportunity to clarify the issue but declined to do so. In State v. Johnson, 171 N.J. 192 (2002), the Court avoided the question and declined to rule on whether the inadvertence prong is still a requirement under the State Constitution. The Court simply held that, to the extent that the inadvertence requirement still exists in the wake of the Horton decision, it was satisfied in the Johnson case. Accordingly, it appears that the inadvertence prong is still part of the analysis in New Jersey with regard to the plain view exception to the warrant requirement.  

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In a drinking and driving prosecution, almost all evidence discovered during a lawful, warrantless search of a motor vehicle is legally admissible against the defendant under the plain view exception to the warrant requirement. The plain view doctrine was established by the United States Supreme Court in the case of Coolidge v. New Hampshire, 403 U.S. 443 (1971). The original plain view exception required proof of three elements: 1) the police officer had to be lawfully in the viewing area. Basically, the officer must have a legal right to be in the place from which he or she makes the observations. 2) the officer was required to discover the evidence inadvertently, meaning that the officer did not know where the evidence was in advance. 3) the criminal nature of the item must be immediately apparent.

The original test has been modified by the United States Supreme Court in subsequent decisions. In Texas v. Brown, the immediately apparent requirement was modified as the police must have probable cause to associate the item seen in plain view with criminal activity. Texas v. Brown, 460 U.S. 730 (1983). In 1990, the Court again modifed the test as the inadvertent aspect of the discovery of evidence was not a necessary condition. Basically, they did away with the second prong of the test.

As modified, the New Jersey Supreme Court has accepted the three requirements governing the plain view exception as described in Brown. As modified, the plain view exception in New Jersey will require proof that:

1) at the time of the viewing of the evidence, the officer was in a location where he or she had a right to be.

2) the officer discovered the evidence inadvertently, meaning that he or she did not know in advance where the evidence was located and did not intend beforehand to seize it; and

3) there was probable cause to associate the items seen in plain view with the evidence of criminal activity.

Interestingly enough, New Jersey has yet to drop the inadvertent requirement from plain view analysis as was done by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990).

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Although a police officer is under no obligation to inform a detained motorist of the right to remain silent (one of the famous Miranda rights), does a driver have the right to remain silent during a traffic stop in New Jersey? In Terry v. Ohio, the Supreme Court held that a person being detained for criminal investigation is not obligated to respond to the questions of the police. Terry v. Ohio, 392 U.S. 1 (1968). This same right applies in New Jersey. The rules of evidence provide that every natural person has a right to refuse to disclose to a law enforcement officer any matter that will incriminate him or expose him to a penalty.

There are some limited exceptions to this rule in the motor vehicle context. Motorists who are involved in motor vehicle accidents are affirmatively required to provide the police, witnesses and other parties involved in the accident certain information. This includes the driver's name and address as well as his or her license and registration. Furthermore, the driver has a duty to report the accident to the police and to provide extensive details on the cause of the accident to the Chief administrator of the Department of Motor Vehicles (DMV). We frequently represent individuals who are charged with failure to report an accident in New Jersey which entails significant penalties.

In reality, motorists frequently make admissions, excuses, and complaints during motor vehicle stops. These admissions are noted by the law enforcement officer on the back of the summons and then repeated in municipal court where they are used against the defendant. These are considered voluntary admissions under the rules of evidence and they are therefore admissible as an exception to the hearsay rule.

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It is now established that a detention which occurs during a motor vehicle stop by the police constitutes a seizure within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution. The question remains whether there is a requirement for the police to inform motorists of their Miranda right to remain silent during a motor vehicle detention. This question was answered in the US Supreme Court decision of Berkemer v. McCarty, 468 U.S. 420 (1984). The court held that the requirements of Miranda v. Arizona apply even in those situations where the defendant is arrested for a minor motor vehicle violation. If the police wish to conduct a custodial interrogation of the defendant, they must first inform him of his constitutional rights.

What about a motor vehicle detention that does not result in an arrest? Although there are many similarities between a motor vehicle detention and an arrest, the Court found two significant differences between a formal arrest and a roadside motor vehicle detention. First, the Court found that most traffic stops are usually temporary and brief. Driver's have an expectation that this short stop may result in a summons being issued and then they will be free to go on their way. The court found this strikingly different from a stationhouse interrogation where the questioning is usually prolonged and the defendant is often aware that the questioning will continue until the police obtain a confession. The second key difference the court emphasized is that during a typical traffic stop a motorist may not feel as though they are completely at the mercy of the police officer. The public nature of the stop reduces the ability of a police officer to use illegitimate means to elicit self-incriminating statements and also diminishes the driver's fear that if he does not cooperate, the police officer may become abusive.

As a result, the court ruled that individuals who are temporarily detained during an ordinary traffic stop are not in custody for purposes of Miranda. There is no requirement that police inform detained motorists of their Miranda rights unless or until the police place a given motorist or vehicle occupant under arrest and wish to conduct a custodial interrogation.

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I am going to continue to discuss traffic stops and the associated length of detention allowed under New Jersey law. As I stated earlier, a traffic stop is considered reasonable if it lasts no longer than is necessary to effectuate its purpose. In fact, if the motor vehicle has been subject to a valid stop, the police may question the occupants even on a subject unrelated to the purpose of the stop as long as the questioning does not extend the stop's duration. However, in the absence of any evidence of criminal conduct, once a police officer is satisfied that the operator is validly licensed and that the vehicle is properly insured and registered in the State of New Jersey, the officer may not detain the occupants for further questioning in anticipation of requesting a consent search.

The New Jersey Supreme Court has spoken on this issue and has adopted a test similar to the test in Terry v. Ohio, 392 U.S. 1 (1968). The famous Terry decision created the "Terry stop" which allows officers to stop and frisk individuals if they have reasonable suspicion that criminal activity is afoot. The Terry decision created a two-part test designed to measure the reasonableness of an investigative stop against the detainee's right to be free from unreasonable seizures. Under the test, a reviewing court must consider:

1. Whether the police officer's actions were justified from their inception; and

2. Whether the actions were reasonably related in scope to the circumstances that justified the stop in the first place.

In the New Jersey Supreme Court case of State v. Dickey, 152 N.J. 468 (1998), the Court found the test to be appropriate in the context of a detention following a traffic stop. As a general rule, an investigative traffic stop will become a de facto arrest when the police officer's conduct is more intrusive than necessary for an investigative stop. Although the courts have thus far declined to impose a time limit on what constitutes a reasonable period of detention, reasonableness appears to be a function of how diligently the police do their jobs at the scene of the stop. The degree of intrusion on the defendant's liberty during the course of the detention is also an important factor. For example, in Dickey, the Supreme Court held that the two hour detention during which the driver and the passenger were removed from the site of the stop to a distant State Police facility was unreasonable and amounted to a de facto arrest.

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During a routine traffic stop, an officer needs a certain amount of time to perform his duties. He must first be satisfied that the driver and occupants do not constitute a threat to themselves or others. Then the officer must obtain information and driving credentials from the driver, verify that neither the vehicle nor its occupants is wanted by other police agencies and complete any tickets and any other documents associated with the stop. Obviously, all of this takes time.

Time is a critical factor during a traffic stop. Although the driver is not under arrest, he or she has been seized within the meaning of the Fourth Amendment and is not free to leave. The defendant is being detained for investigation purposes. Accordingly, the officer does not need probable cause to believe that the operator has committed an offense, nor must the officer inform the driver of his or her constitutional rights prior to questioning. However, the longer the detention period continues, the more the motor vehicle stop will take on the characteristics of an arrest as opposed to a detention. As a result, a court may consider a prolonged detention to have developed into a de facto arrest that must be supported by probable cause. Evidence seized from the operator or statements made during the course of a de facto arrest that is unsupported by probable cause are subject to suppression.

In general, a traffic stop will be considered reasonable if it lasts no longer than is necessary to effectuate its purpose.

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It is well settled that the stopping of a motor vehicle and the detention of its occupants constitutes a seizure within the meaning of the Fourth and Fourteenth Amendments to the US Constitution, even though the purpose of the stop is limited and the detention is brief. The United States Supreme Court in Delaware v. Prouse, 440 U.S. 648 (1979), held that the police must have at least an articulable and reasonable suspicion that a violation of the traffic laws has occurred. This may include a reasonable suspicion that the driver is unlicensed, the vehicle is not properly registered, or that an occupant in the vehicle is subject to seizure for a violation of the law. Absent a reasonable and articulable suspicion, individual police officers may not use their unbridled discretion to effect motor vehicle stops. The Prouse case involved a random stop by a police officer to check on a driver's credentials. There was no justification for the stop other than a desire to perform a random check. Although the Supreme Court ruled that the random aspect of the stop was unreasonable, it did not rule out other types of spot checks by the police. One such suggested stop would be a supervised road block where all vehicles would be stopped and questioned about driving credentials. However, the court was clear that individual officers could not effect motor vehicle stops in the absence of a reasonable and articulable suspicion.

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