In State v. Smart, 253 N.J. 156, ___ (2023) (slip op. at 2)1, the New Jersey Supreme Court addressed the question of “whether the automobile exception to the warrant requirement, as articulated in State v. Witt, 223 N.J. 409, 447-48 (2015), permitted the warrantless search of a vehicle after an investigative stop.”   

In that case, a police officer observed an unoccupied vehicle parked in front of a condominium complex.  One month earlier, the officer had received information from a confidential informant (CI) that linked the defendant Kyle Smart (also known as “killer”) and the unoccupied vehicle to narcotics trafficking in the area.  Id. at ___ (slip op. at 4).  Suspecting that defendant had utilized the vehicle previously to distribute drugs, the officer conducted surveillance.  Ibid.   Approximately thirty minutes later, he observed the defendant, accompanied by a woman (the driver) and a child, enter the vehicle.  Id. at ___ (slip op. at 5).  The officer followed them to a Boston Market and a bank, without noticing any unusual activity, and then to a residence, where he saw activity consistent with a drug transaction.  Ibid.  As a result, the officer conducted an investigative stop, which both the defendant and the State have conceded was legal.  Id. at ___ (slip op. at 6).   

After the driver refused consent to search the vehicle, the officers requested a canine to perform an exterior sniff of the vehicle.  Id. at ___ (slip op. at 7).   Duke, the canine, detected the presence of drugs.  Ibid.  The officers immediately conducted a warrantless search and found drugs, drug paraphernalia, weapons, and ammunition.  Ibid.   

The trial judge granted the defendant’s motion to suppress the evidence seized from the vehicle because the police failed to obtain a warrant.  Ibid.  The Appellate Division affirmed.  Ibid.  The New Jersey Supreme Court granted the State’s motion for leave to appeal and affirmed the trial court’s ruling.  Id. at ___ (slip op. at 8). 

The Court wrote that “[t]he Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, in almost identical language, protect against unreasonable searches and seizures.”  Id. at ___ (slip op. at 10) (quoting State v. Nyema, 249 N.J. 509, 527 (2022)).  However, despite the overlap, it is well established that the New Jersey constitution “provides greater protection against unreasonable searches and seizures than the Fourth Amendment.”  Id. at ___ (slip op. at 11) (quoting State v. Carter, 247 N.J. 488, 504 (2021)).  Those greater individual protections also exist for automobile searches.  Id. at ___ (slip op. at 12).   

The Court then engaged in an extensive analysis of the differences between the automobile exception to the warrant requirement under federal and New Jersey law.  Id at ___ (slip op. at 13-20).  The Court held that under the heightened protections afforded under Article I, Paragraph 7 of our State Constitution, there is an extra requirement to the automobile exception, that is “that the circumstances giving rise to probable cause be ‘unforeseeable and spontaneous’ – in addition to the inherent mobility of the automobile stopped on a roadway.  Ibid. In New Jersey, both elements are necessary to justify a warrantless automobile.” Id. at ___ (slip op at 20) (citing State v. Witt, 223 N.J. 409, 414 (2015). 

Applying that test, the Court found that “the police actions that led to the warrantless search of the [vehicle] were not prompted by the ‘unforeseeability and spontaneity of the circumstances giving rise to probable cause.’”  Id. at ___ (slip op. at 20) (quoting State v. Witt, 223 N.J. at 414).  In fact, “[t]he opposite occurred.”  Ibid.  The Court found that: 

the circumstances giving rise to probable cause were anything but spontaneous; that is, they did not develop, for example, suddenly or rapidly.  Rather, the circumstances unfolded over almost two hours while investigating long-held information from a CI that defendant had utilized the [vehicle] for drug trafficking.  The fact that the canine sniff is what culminated in probable cause does not eviscerate the steps that led to the sniff.  The sniff did not exist in a vacuum, but rather served to confirm and provide evidentiary support for the investigators’ suspicions. The canine sniff was just another step in a multi-step effort to gain access to the vehicle to search for the suspected drugs.   

[Id. at ___ (slip op at 22).] 

Thus, the Court held that in the factual setting of that investigative stop, where the circumstances giving rise to probable cause were not “unforeseeable or spontaneous,” a warrant was required before searching the vehicle.  Ibid.   

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