The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable searches and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). “[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search ….” State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S.Ct. 108, 160 L. Ed.2d 128 (2004). A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. DiLoreto, 180 N.J. 264, 275-77 (2004). “Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary.” Frankel, supra, 179 N.J. at 598. One exception to the warrant requirement is the automobile exception, which “applies only in cases in which probable cause and exigent circumstances are evident, making it impracticable for the police to obtain a warrant.” State v. Cooke, 163 N.J. 657, 671 (2000). The State has the burden to demonstrate that the search “falls within one of the few well-defined exceptions to the warrant requirement.” State v. Maryland, 167 N.J. 471, 482, 771 A.2d 1220 (2001) (internal citations omitted); State v. Patino, 83 N.J. 1, 7, 414 A.2d 1327 (1980). The State must demonstrate by a preponderance of the evidence that there was no constitutional violation. State v. Wilson, 178 N.J. 7, 13, 833 A.2d 1087 (2003).
In contrast to the federal precedents, New Jersey has refused to permit warrantless searches of motor vehicles in the absence of some exigency; reduced privacy expectations without exigent circumstances cannot justify a warrantless search based on probable case. The New Jersey Supreme Court has concluded that exigent circumstances must exist before the police will be allowed to conduct a warrantless search of a motor vehicle based on probable cause. State v. Dunlap, 185 N.J. 543, 549-551 (2006); State v. Wilson, 178 N.J. 7, 13 (2003), State v. Cooke, 163 N.J. 657 (2000).
Exigent circumstances may exist if “unanticipated circumstances that give rise to probable cause occur swiftly.” Cooke, supra, 163 N.J . at 672. They may also exist if an element of surprise has been lost, a vehicle contains contraband, a confederate is waiting to move the evidence, or where the police would otherwise had needed to call in reinforcements to guard the motor vehicle in order to obtain a search warrant. State v. Colvin, 123 N.J. 428, 434-35 (1991).
In State v. Pena-Flores, 198 N.J. 6, 28-31, 30-33 (2009), the Court examined whether there was sufficient exigencies to justify the vehicle search, explaining that exigency is determined case-by-case, based on the totality of the circumstances. In Pena-Flores’s, defendant’s vehicle was stopped for a traffic violation at which time the officer smelled marijuana and thus has probable cause to believe the vehicle contained contraband. There, the officers ordered both the defendant and the passenger out of the vehicle, and conducted pat-down searches of both defendant and the passenger. Neither had contraband on his person. At that point, unable to see in the vehicle because of the tinted windows, one officer entered the passenger side of the vehicle and began his search. Moments later, he uncovered two clear plastic bags on the front side passenger floor. The defendant and passenger were thereafter placed under arrest, and the officers continued a search of the vehicle in which they unveiled a 9 millimeter handgun in the child safety seat located in the backseat of the vehicle, along with large plastic bags containing over one hundred and eleven clear plastic bags of suspected marijuana. The Court found exigency where the stop was unexpected, in response to an aggressive traffic maneuver, the vehicle’s windows were heavily tinted, preventing the officer from looking for weapons or contraband from outside the vehicle, the defendant and passenger were removed from the vehicle but not placed under arrest or in the police car, and the relation of police to suspects was two-to two, with no available backup. It should be noted that the court in Pena-Flores noted the importance of the fact that the officers could not look for weapons or contraband from outside the vehicle because the windows were heavily tinted. This is not the case here.
Compare State v. Nishina, 175 N.J. 502 (2003), where only a single officer was present at the scene when a vehicle was searched based on exigent circumstances. The New Jersey Supreme Court concluded that there was an exigency because one officer could not guard the car and obtain a warrant at the same time. And compare State v. Baum, 393 N.J. Super, 275, 283, 291-292 (App. Div.), leave to appeal granted 192 N.J. 473 (2007), where the court found exigent circumstances to search for drugs where the driver admitted drugs were in the car and for weapons based on the location of vehicle, the time of night, the fact that two other passengers were in vehicle and only two officers were on the scene.
In a more recent case, State v. Ricardo Manuel Ortiz and Arnaldo A. Ortiz, unpublished opinion, App. Div. Docket No. A-4026-08T4 (December 28, 2009), the Appellate Division affirmed the suppression of evidence obtained from the glove compartment of the defendant’s vehicle. Although the stop of the vehicle for having too-darkly tinted windows was justified, and the smell of unburned marijuana gave the police “a well-grounded suspicion that criminal activity was afoot,” the court concluded that sufficient credible evidence existed in the record to support the motion judge’s finding that the police lacked exigency to search the glove compartment without first obtaining a warrant, either by telephone or in person.
In Ortiz, Defendant was pulled over for operating a vehicle which had heavily tinted windows. Upon approaching the vehicle, the officers detected the odor of “raw” marijuana. The Defendant’s credentials were requested, and the officer revealed that the Defendant had an outstanding warrant for his arrest, not the case herein. The defendant was thereafter placed in custody, and the officers questioned the passenger of the vehicle, at which time the smell of marijuana became stronger. The passenger was requested to exit the vehicle, at which time the one of the officers searched the glove box at which time he found a large plastic bag which he later discovered contained marijuana, and cocaine. The court held that the facts were lacking any indication that any delay occasioned by obtaining a warrant to search the car would have jeopardized either the officers’ safety or the integrity of the evidence. The Officer, upon opening the glove compartment and observing the bag, did not believe the bag contained a weapon of any kind. Even if the Officer lawfully opened the glove compartment, there would have been no justification under the State’s theory for further searching the plastic bag, which did not appear on its exterior to contain any weapon therein. Ultimately, the Court in Ortiz held that while the officers had probable cause to believe that a criminal offense had been committed based on the smell of the marijuana alone, no exigency was present.