Consent Searches under New Jersey law

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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