Warrantless Search of an Automobile is Improper Unless the Circumstances Giving Rise to Probable Cause Are “Unforeseeable and Spontaneous”

State v. Smart, 253 N.J. 156 (2023). As Justice Fasciale discussed in great detail in his opinion today for a unanimous (5-0, with Justice Solomon and Judge Sabatino not participating) Court, New Jersey has more protective standards for searches and seizures, including automobile searches, than the Supreme Court of the United States has mandated in the federal system. As especially relevant to today’s case, that is so of the automobile exception to the warrant requirement.

Referring to State v. Witt, 223 N.J. 409 (2015), Justice Fasciale explained that “Witt established for the automobile exception what the Court has held many times when evaluating the constitutionality of a search or seizure: Article I, Paragraph 7 of the New Jersey Constitution offers greater protection than the Fourth Amendment. For the automobile exception, that enhanced protection derives from the extra requirement 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. In New Jersey, both elements are necessary to justify a warrantless automobile search.”

In today’s case, both the Law Division and the Appellate Division had held that the warrantless search at issue was improper and that the evidence that was the fruit of that search was to be suppressed. The Supreme Court granted the State’s petition for leave to appeal and, applying de novo review because the parties agreed on the operative facts, affirmed the rulings below.

Justice Fasciale emphasized that “the question of whether the circumstances giving rise to probable cause were unforeseeable and spontaneous is a fact-sensitive inquiry that should be analyzed case by case.” In this case, that inquiry led to the conclusion that the circumstances were neither unforeseeable nor spontaneous. Rather, “the investigative stop was deliberate, orchestrated, and wholly connected with the reason for the subsequent seizure of the evidence.”

The stop was the product of (among other things) a tip from a confidential informant (“CI”) one month before the stop regarding a known drug dealer and a GMC vehicle connected to the dealer. That information included a picture of the vehicle and a description of the dealer, including that he was a Black male, 5’7″ to 5’9″ with facial tattoos and long dreadlocks who went by the name “Killer.” A police officer who had special drug training and experience surveilled a condominium complex where drug activity was known to have occurred. He saw a vehicle that resembled the one in the photograph. The officer did a database search and other investigation and found that the person described by the informant was listed with the moniker “Killer” and that he “had multiple arrests and felony convictions involving controlled dangerous substances .” He concluded that defendant was the person that the informant had identified.

The officer saw defendant, a woman, and a child enter the vehicle, so he followed it, ending up at a residence where he “saw activity consistent with a drug transaction.” A different officer had been told by a concerned citizen two months before the stop that the citizen had noticed two Black males arrive in a vehicle like the one in the photograph, briefly enter the residence, and then leave. The two officers concluded that defendant had previously engaged in drug dealing at the residence.

After observing the activity at the residence, the police stopped the roughly 77 minutes after the the first officer had spotted the vehicle. Twenty three minutes later, another officer brought a drug-sniffing dog, whose positive “hit” established probable cause. Officers then searched the vehicle and found drugs, drug paraphernalia, weapons, and ammunition.

“Those combined circumstances, which together gave rise to probable cause, can hardly be characterized as unforeseeable,” Justice Fasciale said. “Similarly, 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 GMC 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.” Therefore, the Court affirmed the suppression of the evidence.