SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State v. Juan Pena-Flores, et al. (A-129-06)
State v. Charles Fuller (A-15-07)
Argued March 11, 2008; reargued September 22, 2008 -- Decided February 25, 2009
LONG, J., writing for a majority of the Court.
In these consolidated appeals, the Court considers the standards governing the automobile exception to the requirement that police officers must obtain a warrant before searching a motor vehicle, and the legal effect of warrants that are obtained through telephonic or electronic means.
In the first matter, State v. Pena-Flores, a vehicle driven by defendant Fausto Paredes was pulled over by police after it cut off traffic by abruptly moving to the right from its position in a left-turn-only lane at an intersection. After stopping the vehicle, the officer noticed a strong smell of raw marijuana. Paredes and his passenger, defendant Juan Pena-Flores, were asked to leave the vehicle and were patted down with the assistance of a second officer who responded to the scene. Neither Paredes nor Pena-Flores had contraband on his person. Unable to see into the vehicle because of its darkly tinted windows, one of the officers entered the passenger side of the vehicle and discovered two clear plastic bags of marijuana on the front passenger-side floor. After directing that Paredes and Pena-Flores be placed under arrest, the officer continued his search and found in the back seat a handgun in a child safety seat. Plastic bags containing marijuana also were found in various places in the vehicle.
After a grand jury indicted Paredes and Pena-Flores (hereinafter, Pena-Flores) on drug and weapons charges, the defense filed a motion to suppress the evidence. Before the trial court, one of the officers testified that the traffic stop occurred late at night in a heavily trafficked area, a limited number of officers were on duty, and it would have been unsafe to leave the car or to guard it while trying to obtain a search warrant. The trial court determined that the traffic stop was proper, the odor of raw marijuana established probable cause, and the pat-down search was lawful. The court denied the motion to suppress the two bags of marijuana discovered on the passenger-side floor. Finding that no exigent circumstances existed after that discovery to support a continued search, however, the trial court granted the motion to suppress in respect of the rest of the evidence. According to the court, the only options available to the officers were impounding the car and asking for a search warrant, or acquiring a telephonic warrant. After granting the State’s motion for leave to appeal, the Appellate Division affirmed. The panel agreed that exigent circumstances did not exist to justify the search under the automobile exception. The panel explained that Pena-Flores was in the custody of the other officer, no confederates were around, and the likelihood of loss of evidence was minimal. The Supreme Court granted the State’s petition for certification. 191 N.J. 311 (2007).
In the second matter, State v. Fuller, an officer stopped a GMC Yukon because the driver was not wearing a seatbelt. The street was crowded by passers-by looking into the vehicle. The driver produced a Pennsylvania driver’s license and a bill of sale. The photo on the license, which was issued to a Charles Bradley, did not resemble the driver and the license contained other abnormalities. After three additional troopers arrived, an officer radioed the driver’s Social Security number and date of birth to the Sheriff’s Department and learned that the name on the license, Charles Bradley, was an alias for Charles Fuller. He also learned that the bill of sale and the Pennsylvania license plate on the vehicle corresponded to a Ford Expedition, not the GMC Yukon that Fuller was driving. The officer arrested Fuller for displaying a false driver’s license. Searching Fuller, the officer found two large bundles of money in one pocket of his pants, and a smaller bundle in another pocket. After Fuller was placed inside the police cruiser, a search of the Yukon revealed a loaded handgun wedged between the console and the driver’s seat and two prescription drug bottles containing 106 Xanax pills in the console. The names of the prescription holders were scratched off the labels of the bottles. The officer found marijuana and a sword in other areas inside the Yukon.
A grand jury returned an indictment charging multiple drug and weapons violations. Fuller moved to suppress the evidence. The trial court denied the motion. The Appellate Division reversed, finding that the officer conducted an illegal search incident to arrest. The Supreme Court granted the State’s petition for certification, 188 N.J. 348 (2006), and remanded to the Appellate Division to consider the facts under the automobile exception. The Appellate Division again found that the motion to suppress should have been granted. The Supreme Court granted the State’s subsequent petition for certification. 192 N.J. 71 (2007).
HELD: The Supreme Court affirms its longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement. Whether exigent circumstances exist is to be decided on a case-by-case basis with the focus on police safety and the preservation of evidence. The Court also determines that a warrant obtained by telephonic or electronic means is the equivalent of an in-person warrant and does not require proof of exigent circumstances.
1. The United States and New Jersey Constitutions guarantee the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches or seizures. Warrantless searches are presumptively unreasonable and are prohibited unless they fall within an exception to the warrant requirement. Those exceptions include, among others, plain view, consent, search incident to arrest, and the automobile exception. (P. 13).
2. Under the search incident to arrest exception, the legal seizure of the arrestee, based on probable cause to arrest, automatically justifies the warrantless search of his person and the area within his immediate grasp. The arrest must precede the search. The justification for the search is to preclude an arrestee from accessing a weapon or destroying evidence. Under the federal Constitution, even if an arrestee is removed and secured elsewhere, a search of the passenger area of his automobile incident to his arrest is permissible. However, this Court diverged from federal precedent in 2006 in State v Eckel, and declared that the search of the interior compartment of a vehicle incident to arrest is limited to the area from which an occupant may seize a weapon or destroy evidence. Therefore, a search cannot be sustained where the occupant has been arrested, removed and secured elsewhere. Here, Pena-Flores was not yet arrested and Fuller was already secured in the troop car when their automobile searches took place. Thus, search incident to arrest is not the proper analytical framework in these cases. (Pp. 14-15).
3. Under the automobile exception, even where a defendant is not under arrest or where an arrested defendant has been secured, there may be justification to search a vehicle. Under federal constitutional law, a warrantless search of a motor vehicle is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality. The purposes of the exception are police safety and the preservation of evidence. The underlying rationales are the ready mobility of the vehicle, the inherent potential for loss of evidence before a warrant is obtained, and the decreased expectation of privacy in motor vehicles, which are subject to extensive government regulation. In effect, under the federal standard, exigency is automatic. In New Jersey, however, the warrantless search of an automobile is permissible where (1) the stop is unexpected, i.e., unforeseen and spontaneous; (2) the police have probable cause to believe that the vehicle contains evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. Exigency must be determined on a case-by-case basis. How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry. No one factor is dispositive; courts must consider the totality of the circumstances. Legitimate considerations include, for example, the time of day, location of the stop, nature of the neighborhood, unfolding of the events establishing probable cause, ratio of officers to suspects, existence of confederates who know the car’s location and could remove it or its contents, whether the arrest was observed by passers by who could tamper with the car or evidence, whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or evidence at risk. Exigent circumstances are present when officers do not have sufficient time to obtain any form of warrant. (Pp. 15-30).
4. The vehicle at issue in Pena-Flores was unexpectedly and legitimately stopped for a traffic violation. The officer was unable to look for weapons or contraband from outside because the vehicle’s windows were darkly tinted. The smell of marijuana constituted probable cause that the vehicle contained contraband. The requirement of exigency was met because Pena-Flores was initially removed from the vehicle, but was not placed under arrest or secured inside a patrol car. There was no available backup and the ratio of officers to suspects was two-to-two. Because the standards governing the automobile exception were met, the Court reverses the judgment of the Appellate Division to the contrary. (Pp. 30-31).
5. Fuller was pulled over unexpectedly for a traffic violation. The conflicting identification and vehicle documentation that he produced entitled the officer, separate and apart from the automobile exception, to look into the areas in the vehicle that might be expected to contain ownership evidence. During that search of the center console, the officer found a loaded handgun and 106 Xanax pills. Those items were not subject to suppression. However, a further search was not warranted under the search-incident-to-arrest exception. Even though the items that had been uncovered during the search for credentials provided probable cause to believe additional contraband and weapons might be present, Fuller was arrested and secured in the police cruiser. Nor was a further search warranted by the automobile exception because there was no exigency. Fuller had been pulled over in broad daylight on a city street, he was arrested and secured in the cruiser, the record does not suggest he had cohorts who might have come on the scene, and the officer was assisted by one to three other troopers. The vehicle could have been impounded or one officer could have remained with it while a warrant was sought. There was no urgent, immediate need for the officers to conduct a full search of the automobile, therefore the evidence that was uncovered in areas of the vehicle in which credentials would not normally be kept was subject to suppression. (Pp. 31-34).
6. Recognizing that telephonic warrants have been inhibited through case law and the requirements of Court Rules, the Court declares that a warrant obtained by telephonic or electronic means is the equivalent of an in-person warrant and should be treated accordingly. The Court determines to amend the Court Rules to clarify the parity between the various methods for obtaining a warrant and to underscore that an officer may resort to electronic or telephonic means without the need to prove exigency. The Court determines also to establish a task force to assess the practical issues involved in obtaining telephonic and electronic warrants. The purpose is to give police access to an efficient and speedy electronic and telephonic warrant procedure that will be available to them on the scene; that will obviate the need for difficult exigency assessments; and that will guarantee citizens the protections that the warrant requirement affords—an evaluation of probable cause by a neutral judicial officer. Traditional exceptions to the warrant requirement will not be supplanted, however. The Court will continue to recognize the right of officers to search a motor vehicle without a warrant where probable cause and exigent circumstances coexist. (Pp. 34-40).
The judgment of the Appellate Division in Pena-Flores is REVERSED. The judgment of the Appellate Division in Fuller is AFFIRMED in part and REVERSED in part. The cases are REMANDED to the respective trial courts for proceedings consistent with this opinion.
JUSTICE ALBIN, DISSENTING, joined by CHIEF JUSTICE RABNER and JUSTICE RIVERA-SOTO, acknowledges that the majority’s decision follows prior precedent, but he maintains that this decision will result in a greater deprivation of the liberty interests of citizens while impairing the immediate investigation of suspected crimes. Justice Albin would return to the standard for invoking the automobile exception that was formulated by the Court in State v. Alston, 88 N.J. 211 (1981) (“[E]xigent circumstances that justify the invocation of the automobile exception are the unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway.”). Applying the Alston standard, Justice Albin would have found the vehicle searches in both Pena-Flores and Fuller constitutional because the unforeseeability and spontaneity of the circumstances gave rise to probable cause.
JUSTICES LaVECCHIA, WALLACE, and HOENS join in JUSTICE LONG’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which CHIEF JUSTICE RABNER and JUSTICE RIVERA-SOTO join.
SUPREME COURT OF NEW JERSEY
A- 129 September Term 2006
A- 15 September Term 2007
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v. A-129-06
JUAN PENA-FLORES, a/k/a JUAN C. PENAFLORES, a/k/a JUAN C. FLORES, a/k/a JUAN C. PENA and FAUSTO PARADES, a/k/a FAUSTO PAREDES,
Defendants-Respondents.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v. A-15-07
CHARLES FULLER,
Defendant-Respondent.
Argued March 11, 2008
Re-argued September 22, 2008 – Decided February 25, 2009
On appeal from the Superior Court, Appellate Division (State v Juan Pena-Flores).
On certification to the Superior Court, Appellate Division (State v. Charles Fuller).
Ronald Susswein, Assistant Attorney General, argued the cause for appellant in State v. Pena-Flores (Anne Milgram, Attorney General of New Jersey, attorney; Mr. Susswein and Maura K. Tully, Deputy Attorney General, of counsel and on the briefs).
Mary E. McAnally, Deputy Attorney General, argued the cause for appellant in State v. Fuller (Anne Milgram, Attorney General of New Jersey, attorney).
Antonio R. Espinosa argued the cause for respondent Juan Pena-Flores (Andril & Espinosa, attorneys; Mr. Espinosa and William G. Sanchez, on the briefs).
Thomas J. Butler, Jr., argued the cause for respondent Fausto Parades (Butler♦Conti, attorneys).
Michael W. Kahn argued the cause for respondent Charles Fuller (Mr. Kahn, attorney; Mr. Kahn and Scott A. Sheldon, on the briefs).
Joseph P. Connor, Jr., Deputy First Assistant Morris County Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Ronald J. Casella, President, County Prosecutor’s Association, attorney).
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Yvonne Smith Segars, Public Defender, attorney).
John J. Farmer, Jr., argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Arseneault, Whipple, Farmer, Fassett & Azzarello, attorneys; Mr. Farmer and Joshua C. Gillette, of counsel and on the briefs).
JUSTICE LONG delivered the opinion of the Court.
At issue in these appeals, which we have consolidated for the purpose of this opinion, is the automobile exception to the warrant requirement. Today, we reaffirm our longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement. The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence.
I.
A. Juan Pena-Flores and Fausto Paredes1
On October 5, 2005, at approximately 11:00 p.m., Officer Donald Zsak saw a silver Ford Expedition in the left-turn-only lane at the intersection of Centennial Avenue and Raritan Road in Cranford. The driver abruptly moved to the right, cutting off traffic, and proceeded on Centennial Avenue. Zsak eventually stopped the Expedition on Stiles Street in Linden, near the intersection with Willick Road.
As Zsak approached the driver side of the Expedition, he noticed dark tint covering all the windows and a strong smell of “raw marijuana.” Because of his role in nearly 150 investigations involving raw marijuana and his special training in the identification of marijuana by sight and smell, Zsak was confident that he had properly identified the odor. At that point, Zsak asked the driver, later identified as Fausto Paredes, to get out and move to the rear of the vehicle, where Zsak conducted a pat-down search.
As Zsak searched Paredes, Officer Ryan Greco arrived to provide assistance. Zsak passed Paredes over to Greco and moved to the passenger side of the Expedition, where he removed the passenger, Juan Pena-Flores, from the car. He conducted a pat-down search, and then turned Pena-Flores over to Greco. Neither Paredes nor Pena-Flores had contraband on his person.
At that point, unable to see into the vehicle because of the tinted windows, Zsak entered the passenger side and began his search. Moments later, he uncovered two clear plastic bags of marijuana on the front passenger-side floor. He then instructed Greco to place Paredes and Pena-Flores under arrest.
Zsak next searched the backseat and found a nine-millimeter handgun in the child safety seat. Thereafter, in various places in the car, he found a large clear plastic bag that contained twenty-two clear plastic bags of suspected marijuana; a large plastic bag that contained fifteen clear individual plastic bags of suspected marijuana; a large plastic bag containing one hundred and eleven clear plastic bags of suspected marijuana; eight clear plastic bags containing residue of a suspected controlled substance; and two boxes containing empty, small plastic bags.
A Union County Grand Jury returned an indictment charging Pena-Flores and Paredes with fourth-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(3); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11); third-degree possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree unlawful possession of a firearm while possessing a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:39-4.1(a).
Defendants moved to suppress, and Officer Zsak, the only witness to testify, established the facts set forth above at an evidentiary hearing. Zsak further testified that it was Cranford Police Department policy to transport one defendant per police car back to police headquarters. In addition to Zsak and Greco, who were already on the scene, there were only three other officers with Cranford police cars available on patrol on October 5, 2005. Zsak explained that because the stop occurred late at night in a heavily trafficked area, and because there was a limited number of officers on duty, it would have been unsafe to leave the car or to guard it while trying to obtain a search warrant.
In his decision, the trial judge noted that Zsak stopped the vehicle lawfully after viewing a traffic violation and found that credible evidence demonstrated that Zsak smelled raw marijuana. Based on the odor emanating from the vehicle, the judge concluded that Zsak lawfully took defendants out of the car to conduct a pat-down search. As for the vehicle, the judge concluded that the search was lawful up to the point at which Zsak placed both defendants under arrest. However, he declared that the additional searches were not lawful and suppressed the evidence found after Zsak discovered the two bags of marijuana on the passenger-side floor.
The judge denied the motion to suppress regarding the two bags found on the passenger-side floor, but granted the motion in respect of the rest of the evidence, declaring that there was no exigency in the case. According to the judge, the only options available to the officers were impounding the car and seeking a search warrant, or acquiring a telephonic warrant.
The Appellate Division analyzed the facts against the search incident to arrest exception to the warrant requirement under State v. Eckel, 185 N.J. 523 (2006), and against the automobile exception under State v. Dunlap, 185 N.J. 543 (2006). The panel found that the search incident to arrest exception was inapplicable because neither Paredes nor Pena-Flores was under arrest at the time Zsak began the search of the vehicle. As for the automobile exception, the panel noted that Zsak had probable cause to believe the vehicle contained contraband based on the strong smell of marijuana coming from the car, but rejected the notion that exigency existed:
[E]xigency cannot be found based upon concern for the safety of the police officers involved, nor in the desire to preserve evidence that might be found in the vehicle. Both defendants, the sole occupants of the Ford, were in the custody of Officer [Greco]. Protective searches of their persons had not revealed any weapons or contraband. . . . No other confederates were around, nor was it likely that anyone knew of defendants’ arrest. Thus, the probability of some third[]party [removing the car or evidence] was minimal at best.
As a result, the panel concluded that the search was unlawful under the automobile exception to the warrant requirement. The State filed a petition for certification, which we granted. 191 N.J. 311 (2007).
B. Charles Fuller
Observing defendant Charles Fuller driving a GMC Yukon without a seatbelt, New Jersey State Trooper Terrence Clemens stopped Fuller as he turned left onto Mt. Ephraim Avenue in Camden. The stop occurred at approximately 1:15 p.m. on a busy street in Camden in front of a liquor store. According to the videotape that was admitted into evidence, the street was crowded with passersby who were looking into the vehicle. Fuller initially denied that he was driving without his seatbelt, but subsequently admitted that he removed his seatbelt to pick up his cell phone from the car floor. Fuller gave Clemens a Pennsylvania driver’s license issued to Charles Bradley and a bill of sale.
As Clemens examined the license, he noticed that the photograph did not resemble Fuller and that the license number was handwritten on the back. Because that number is normally typed, the handwriting struck Clemens as peculiar. Clemens questioned Fuller about the disparity between the license photograph and his appearance. Fuller stated that the summer season had darkened his skin tone. Clemens also asked Fuller if he had a New Jersey driver’s license. The answer was “no”; Fuller said he was a resident of Philadelphia, where he spent almost all of his time.
During his conversation with Fuller, Clemens noticed several motor-vehicle summonses lying on the backseat of the car. Clemens asked to see the summonses, and Fuller gave him the two documents. Those summonses indicated that Charles Bradley had been cited for motor-vehicle infractions in Camden one day earlier: once for disorderly conduct and once for driving a car with fictitious tags. When asked about the disorderly conduct charge, Fuller responded by indicating that the summons was issued only because of the charging officer’s poor attitude.
Because the Camden County Sheriff’s Department is capable of identifying an individual on the basis of a tattoo, Clemens asked Fuller if he had any tattoos. Fuller noted that he had a tattoo of a heart on his right arm while pointing to his left arm. When Clemens corrected him, Fuller acknowledged that the tattoo was on his left arm. At that point, three additional troopers arrived at the scene.
Clemens returned to his cruiser and radioed Fuller’s Social Security number and date of birth to the Camden County Sheriff’s Department. The dispatcher responded that the identity information matched Charles Fuller’s Social Security number and birth date and that Charles Bradley was an alias for Charles Fuller.2 Clemens also learned that the bill of sale and the Pennsylvania license plate on Fuller’s vehicle corresponded to a Ford Expedition, not the GMC Yukon that Fuller was driving.
Clemens directed Fuller to get out of the vehicle and move to the rear. Upon further questioning, Fuller explained that his real name was Charles Bradley but on previous occasions, including an arrest, he had used the name Charles Fuller. Clemens then arrested Fuller for displaying a false driver’s license and for hindering his own apprehension. Clemens searched Fuller, finding two large bundles of money in the left side pocket of his cargo pants, and one smaller bundle of money in the left front pocket. After the search, Clemens placed Fuller inside the cruiser.
Along with another trooper, Clemens proceeded to search the interior of the car beginning with the driver-side compartment. Clemens found a loaded handgun inside a plastic bag wedged between the console and the driver’s seat, and in the console he found money and two prescription bottles. The names of the prescription holder were scratched off the labels on the bottles, which contained a total of 106 alprazolam (Xanax) pills. Clemens also found a light blue plastic bag containing marijuana in a dashboard compartment above the radio and additional bags of marijuana underneath the backseat. Finally, Clemens found a twenty-eight-inch sword behind the backseat.
A Camden County Grand Jury returned an indictment charging Fuller with fourth-degree possession of a controlled dangerous substance, marijuana, N.J.S.A. 2C:35-10(a)(3); third-degree possession of a controlled dangerous substance, alprazolam, N.J.S.A. 2C:35-10(a)(1); third-degree possession of a controlled dangerous substance, alprazolam, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(13); third-degree possession of a controlled dangerous substance, marijuana, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11); third-degree possession of a controlled dangerous substance, marijuana and/or alprazolam, with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4; fourth-degree unlawful possession of a weapon, a sword, N.J.S.A. 2C:39-5(d); second-degree possession of a weapon, a firearm, while in the course of possessing with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:39-4.1(a); second-degree possession of a weapon, a sword, while in the course of possessing with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:39-4.1(c); third-degree displaying a false motor vehicle driver’s license, which could be used as means of verifying identity, N.J.S.A. 2C:21-2.1(c); and second-degree possession of a firearm as a convicted felon, N.J.S.A. 2C:39-7.
Fuller moved to suppress the items found in the Yukon, and an evidentiary hearing took place at which the previous facts were established. Before a decision, Fuller entered a plea of guilty to possession of a controlled dangerous substance, marijuana or alprazolam, with intent to distribute within 1,000 feet of school property, and waived his right to appeal pursuant to an agreement with the State. Fuller was sentenced in accordance with the plea agreement to a custodial term of five years with a two-year period of parole ineligibility. The trial judge stayed the sentence for forty-five days to allow Fuller to decide whether to appeal because the judge believed that the Appellate Division’s decision in State v. Eckel, 374 N.J. Super. 91 (App. Div. 2004), aff’d, 185 N.J. 523 (2006), could have significant bearing on the case. The State accepted the judge’s decision and agreed not to set aside the plea even if Fuller appealed.
Ultimately, the judge supplemented the record, denying the motion to suppress. On appeal, the Appellate Division reversed, declaring that Clemens conducted an illegal search incident to arrest under Eckel, supra, 185 N.J. at 524.
The State filed a petition for certification, which we granted. 188 N.J. 348 (2006). We remanded the case to the Appellate Division for consideration under the automobile exception. The Appellate Division reiterated its position that Fuller’s motion to suppress should have been granted. We granted the State’s subsequent petition for certification. 192 N.J. 71 (2007).
II.
The State asks us to jettison our decision in State v. Cooke, 163 N.J. 657, 661 (2000), and return to the standard established in State v. Alston, 88 N.J. 211, 234-35 (1981), which, it argues, recognizes an unforeseen stop, probable cause, and the inherent mobility of the vehicle as the only requirements for the automobile exception.
Pena-Flores and Fuller argue that Cooke was merely a reiteration of this Court’s longstanding adherence to enhanced search-and-seizure protections under the automobile exception and that it properly reaffirmed the need for exigent circumstances beyond those arising from the mere mobility of the vehicle.
III.
In similar language, the United States Constitution and the New Jersey Constitution guarantee the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Warrantless searches are presumptively unreasonable and thus are prohibited unless they fall within a recognized exception to the warrant requirement. State v. Wilson, 178 N.J. 7, 12 (2003) (citing Cooke, supra, 163 N.J. at 664). We detailed those exceptions in State v. Hill, 115 N.J. 169, 173-74 (1989). They include, among others, plain view, consent, community caretaking, search incident to arrest, and the automobile exception. Ibid. It is the two latter exceptions that have been cited by the courts in this case. Indeed, the distinct but interrelated search incident to arrest and automobile exceptions provide the legal framework under which the facts must be analyzed.
A.
Under the search incident to arrest exception, the legal seizure of the arrestee automatically justifies the warrantless search of his person and the area within his immediate grasp. Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed.2d 685, 694 (1969). The arrest must precede the search. Smith v. Ohio, 494 U.S. 541, 543, 110 S. Ct. 1288, 1290, 108 L. Ed.2d 464, 467 (1990). So long as there is probable cause to arrest, the ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons. New York v. Belton, 453 U.S. 454, 461, 101 S. Ct. 2860, 2864, 69 L. Ed.2d 768, 775-76 (1981). The justification for the search of an arrestee is to preclude him from accessing a weapon or destroying evidence. Chimel, supra, 395 U.S. at 762-63, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694.
Under the federal Constitution, even if an arrestee is removed and secured elsewhere, a search of the passenger area of his automobile incident to his arrest is permissible. Belton, supra, 453 U.S. at 460, 101 S. Ct. at 2864, 69 L. Ed. 2d at 775. In 2006, however, we diverged from federal precedent in Eckel, supra, 185 N.J. at 524, and declared that the search of the interior compartment of a motor vehicle incident to arrest is limited to the area from which an occupant may, in fact, seize a weapon or destroy evidence. It follows that such a search cannot be sustained where the occupant has been “arrested, removed[,] and secured elsewhere,” because the potential for obtaining a weapon or destroying contraband is by then eliminated. Id. at 541. Where an occupant is arrested but not removed or secured, courts are required to make a fact-intensive determination regarding the danger posed by the arrestee. Ibid.
As is obvious, the search incident to arrest exception is focused on the arrestee himself and on eliminating his potential to endanger the police or destroy evidence. See Dunlap, supra, 185 N.J. at 548-49 (holding where defendant was restrained outside car and unable to gain access, search of vehicle was not justifiable as incident to arrest). Although the courts below cited search-incident-to-arrest principles, Pena-Flores was not arrested and Fuller was already secured in the troop car when their respective automobile searches took place. Thus, search incident to arrest is not the proper analytical framework in these cases.
B.
We thus turn to the automobile exception. Even where a defendant is not under arrest or where an arrested defendant has been secured, there may be justification to search a vehicle under the automobile exception.
Under federal constitutional law, a warrantless search of a motor vehicle pursuant to the automobile exception is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed.2d 1031, 1036 (1996). Like the search incident to arrest exception, the purposes of the automobile exception are police safety and the preservation of evidence. The underlying rationales for the automobile exception are: (1) the ready mobility of the vehicle and the inherent potential for loss or destruction of evidence before a warrant is obtained; and (2) the decreased expectation of privacy in motor vehicles, which are subject to extensive government regulation. Ibid. In effect, under the federal standard, exigency is automatic. Ibid.
IV.
We have never subscribed fully to the federal version of the automobile exception and the relationship of our jurisprudence to federal jurisprudence has been an uneasy one. Although not a frontal assault on federal precedent, over three decades ago in State v. La Porte, 62 N.J. 312, 316-17 (1973), we first suggested that it is the specific facts of the case and not the mere mobility of the automobile that creates exigency. Later, in State v. Alston, 88 N.J. 211, 216 (1981), we grappled with the issue directly. There, police detectives pulled over a speeding vehicle and noticed that the individuals in the vehicle were acting furtively, as if attempting to conceal something. Ibid. When the driver opened the glove compartment to look for his credentials, the detectives observed shotgun ammunition. Ibid. The suspects were asked to exit the vehicle and were frisked, but no weapons were found. Ibid. A subsequent search of the automobile revealed a weapon under the front passenger seat. Id. at 216-17. The suspects then were arrested, and a further search yielded two more weapons. Id. at 217. The trial judge suppressed all of the evidence. Ibid. The Appellate Division reversed the suppression of the initially discovered weapon, but affirmed the remainder of the judge’s order. Ibid.
In reversing that suppression, we applied the automobile exception, concluding that probable cause to suspect that the vehicle contained illegal items arose from viewing the shotgun shells in the glove compartment and that “exigency” was satisfied by “the unforeseeability and spontaneity of the circumstances giving rise to probable cause and the inherent mobility of the automobile stopped on the highway.” Id. at 233 (citations omitted). In so ruling, we essentially added a requirement that is not part of the federal automobile standard: the stop and search of the vehicle cannot be pre-planned -- it must be unforeseen and spontaneous. See id. at 233-34.3
On the very day that we decided Alston, we also decided State v. Martin, 87 N.J. 561 (1981), in which we upheld the warrantless search of a vehicle at a police station, based upon “exigency” at the point of arrest. We said:
The occupants of the car, the suspected robbers, were still at large. Because the police had stopped the car, the occupants were alerted that they might have been suspected of involvement in the armed robbery. They might have returned at any moment to move the car or remove the car’s contents. In addition, the officers had reason to believe that the occupants of the station wagon were not only alerted but also armed and dangerous. The illumination in the parking lot where the vehicle was discovered at that early morning hour was dim at best. In view of the possibility of the suspects’ return to the car, a careful search at that point was impractical and perhaps not safe for the officers.
The level of exigency in the circumstances surrounding this search was heightened by the fact that the police were actively involved in an ongoing investigation shortly after the armed robbery and near to where it had occurred. . . . There was an urgent, immediate need for the police to ascertain whether the car contained evidence of the armed robbery, before the suspects had an opportunity to leave the area or to destroy or dispose of other evidence.
Finally, the circumstances that furnished the officers with probable cause were unanticipated and developed spontaneously.
[Martin, supra, 87 N.J. at 569-70 (quotation marks and citations omitted).]
Obviously, there would have been no need to detail the facts and circumstances that created the exigency had the mere mobility of the vehicle sufficed. Thus, together Alston and Martin rejected the federal standard by declaring (1) that the stop had to be unforeseen and spontaneous and (2) that exigency must be assessed based on the particular facts and circumstances of the case, and does not automatically flow from the mobility of the vehicle.
In 1991, in State v. Colvin, 123 N.J. 428 (1991), we affirmed that view. There, we faced the issue in connection with a vehicle parked on a public street. Id. at 429. Officers were patrolling a high-crime area when they observed the defendant sitting on a porch engaging in a suspected drug transaction. Id. at 430. When the officers approached him, the defendant attempted to flee, at which time he threw a vial of suspected cocaine on the ground. Ibid. The officers seized the vial, caught up with the defendant, and arrested him. Ibid. Minutes later, an informant told the police that drugs had been stashed in the defendant’s car, which was parked near the site of the arrest, and that other people knew about the arrest and would attempt to remove the drugs. Ibid. The officers proceeded to the parked and unlocked car, which matched the informant’s description, searched it, and discovered packets of cocaine. Ibid. The trial judge suppressed the evidence and the Appellate Division affirmed. Ibid.
After concluding that the informant’s statements demonstrated probable cause, id. at 435, we held that exigency existed, not because of the inherent mobility of the car or the fact that the stop was unanticipated, but rather because
[a]ny element of surprise had been lost; the vehicle contained the “contraband” drugs; there were “confederates waiting to move the evidence”; [and] the police would need “a special police detail to guard the immobilized automobile.” [Coolidge v. New Hampshire, 403 U.S. 443, 462, 91 S. Ct. 2022, 2036, 29 L. Ed.2d 564, 580 (1971).] In such circumstances, “it would often be unduly burdensome and unreasonably restrictive to require the police to post a guard and repair to the courthouse for a warrant once they have probable cause to search” the car. United States v. Bradshaw, 515 F.2d 360, 363 (D.C. Cir. 1975). Whether a special police detail is less burdensome when a car is parked on a city street than when the car is stopped on an open highway is open to debate. In either case it may be impracticable.
[Colvin, supra, 123 N.J. at 434-35.]
We concluded that the “justification to conduct a warrantless automobile search does not turn on whether the vehicle is parked or moving.” Id. at 437. Rather, the dispositive question is whether “the circumstances . . . make it impracticable[4] to obtain a warrant when the police have probable cause to search the car.” Ibid. (emphasis added). Accordingly,
when, without advance planning, police encounter a parked car, have probable cause to believe that the vehicle contains criminal contraband . . . and have articulable reasons to believe that the evidence may otherwise be lost or destroyed, they may seize and search the vehicle for the contraband without the necessity of a warrant.
[Id. at 429-30 (emphasis added).]
Colvin is crystal clear: exigency above and beyond the mere mobility of the vehicle is required. In particular, Colvin mandated “articulable” reasons to believe that the evidence would be at risk if a search was delayed. Id. at 429. The pellucidity of Colvin underscores that what we said in Alston and Martin was neither “mistaken” nor “unwitting,” as the dissent suggests. Post at __ (slip op. at 2).
Nine years later in Cooke, supra, 163 N.J. at 665, we affirmed that view when we addressed the issue of exigent circumstances and the automobile exception in light of Labron, supra, 518 U.S. at 940, 116 S. Ct. at 2487, 135 L. Ed. 2d at 1036, and Maryland v. Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 2014, 144 L. Ed.2d 442, 445 (1999), which had reaffirmed that under federal precedent the automobile exception has “no separate exigency requirement.”5 Dyson, supra, 527 U.S. at 466, 119 S. Ct. at 2014, 144 L. Ed. 2d at 445. In Cooke, supra, the police had received information from a reliable informant that the defendant was selling drugs in a particular location, and storing the drugs in a gray Ford Escort. 163 N.J. at 662. A police officer watching a housing complex in a high-crime area “observed [the] defendant in a parking lot working on what appeared to be the radio speakers within [a] Ford Escort.” Ibid. The officer continued watching as the defendant engaged in what appeared to be a drug transaction in which he retrieved the drugs from a nearby Hyundai. Ibid. Two similar transactions subsequently were observed involving the Hyundai and the Ford Escort. Ibid. The defendant then drove away in the Hyundai. Ibid. The Hyundai was stopped, and the defendant was arrested pursuant to an unrelated outstanding warrant. Id. at 662-63. A search of his person yielded the keys to the Escort. Id. at 663. The officers then searched the Escort and discovered illegal drugs. Ibid.
A trial judge granted the defendant’s motion to suppress based on the absence of exigency. Ibid. The vehicle was not “‘readily mobile,’” the defendant was in custody, the police had the keys to the Escort, and an officer was surveilling the Escort. Ibid. According to the judge, under those circumstances, the police should have obtained a warrant prior to searching the Escort, a decision with which the Appellate Division agreed. Ibid.
In reviewing the order to suppress, we turned to first principles. “‘The requirement that a search warrant be obtained before evidence may be seized is not lightly to be dispensed with, and the burden is on the State . . . to bring it within one of those recognized exceptions.’” Id. at 664 (quoting Alston, supra, 88 N.J. at 230). Justice Verniero, writing for the Court, detailed the federal version of the automobile exception and noted that Labron, supra, 518 U.S. at 940, 116 S. Ct. at 2487, 135 L. Ed. 2d at 1036, had reaffirmed probable cause and the mobility of the automobile as the only requirements in the federal courts. Cooke, supra, 163 N.J. at 665. As Justice Verniero noted, Labron “essentially disposed of the additional requirement of exigent circumstances” when discerning the applicability of the automobile exception. Id. at 666.
Looking to our own Constitution, along with “our unwavering precedent and the important rights at stake,” id. at 670, in Cooke we affirmed that the exigency inquiry has always been a part of New Jersey’s automobile exception. Id. at 667, 670-71. We explained why:
Without a requirement of exigent circumstances, virtually every search of an automobile would be valid provided the police had probable cause to act. For example, . . . a car parked in the home driveway of vacationing owners would be a fair target of a warrantless search if the police had probable cause to believe the vehicle contained drugs. Such a broad ruling has no basis in our case law.
[Id. at 667-68 (citing Colvin, supra, 123 N.J. at 431).]
By way of example, but not limitation, we went on to repeat the kinds of considerations that could factor into the “exigency” calculus for purposes of the automobile exception established in our prior decisions in Alston, Martin, La Porte, and Colvin. Id. at 668-71.
In Cooke, supra, we held that exigent circumstances justified the warrantless search of the Escort. 163 N.J. at 675-76. Several factors supported that holding: the impracticability of the surveilling officer leaving his post to secure the Escort; the loss of the element of surprise after arresting the defendant; that third parties knew of the Escort’s location and knew that the defendant stored drugs there; that the drugs may have been removed or destroyed; that the Escort could be removed; and that the Escort was in a high-crime area. Id. at 675. “[A]ny one of [those] factors, standing alone, would be insufficient to support a finding of exigency,” but when combined, the warrantless search was justified. Id. at 675-76.
Cooke provided us with a long view of the development of automobile-search jurisprudence in New Jersey. Like its predecessors, Cooke demonstrates that the initial policy rationales that justified the existence of the federal automobile exception to the warrant requirement are only part of the larger “exigency” consideration in this State. Thus, courts must not only consider the mobility of the vehicle or the lessened expectation of privacy in it, but also must look to all of the facts and circumstances surrounding the search to determine the existence of exigency.
In 2006, in a unanimous opinion, we decided Dunlap, supra, 185 N.J. at 543, which began when the police were notified that an individual had found a handgun and drugs in her daughter’s bedroom. Id. at 544. When they arrested the daughter, she stated that the contraband belonged to her boyfriend (the defendant), who was a suspect in other drug crimes and had previously been arrested. Id. at 544-45. She said that if the defendant came to her house, he likely would have heroin on him; that he often carried guns; and that he would drive a green Hyundai. Id. at 545. At the urging of the officers, who had obtained authorization for a consensual telephonic interception, the daughter called the defendant and asked him to come to her residence. Ibid.
Shortly thereafter, defendant arrived and exited the Hyundai. Ibid. Two officers tackled him as he was walking to the house and arrested him. Ibid. At that time, approximately ten officers were at the scene. Ibid. The officers then unlocked the Hyundai and immediately detected the smell of burning marijuana. Ibid. They searched the entire passenger compartment and the glove box, and discovered suspected heroin. Id. at 545-46. They also searched a “trap” in the Hyundai and found further evidence. Id. at 546.
As part of its justification for the warrantless search, the State asserted that the automobile exception applied. Id. at 549. We ultimately upheld the Appellate Division’s decision that probable cause existed but exigency did not. Id. at 549-51. The Appellate Division cited the residential nature of the neighborhood; the fact that no third parties knew of defendant’s destination or his arrest; the number of officers on the scene available to oversee the car