Earlier this week, the New Jersey Supreme Court listened to arguments on whether it should discard its previous ruling that governs warrantless auto searches performed by police.  The previous decision, based on the 2009 case of State v. Pena-Flores, states that an officer must first have pressing circumstances and probable cause before conducting a search without a warrant.  The prosecution took the position that the current standard is not working, arguing that it has led to too many accounts of police asking motorists to sign a consent to search on the spot.

Also supporting this change is assistant attorney general Ronald Susswein.  He would like to see a return to the prior standard set in 1981, established by the decision in State v. Alston.  His main concern regarding the current rule is that police are more likely to ask for consent and resort to coercive means to get that permission.  Susswein also argues that the ruling of State v. Pena-Flores was intended to make it easier for an officer to obtain a search warrant given the use of cell phones but it hasn’t worked.   He referred to a pilot program in Burlington County where on average it took an hour to obtain warrant approval over the phone.

On the other hand, assistant deputy public defender Stephen Kirsch, along with the New Jersey State Bar Association, the American Civil Liberties Union of New Jersey, and the Association of Criminal Defense Lawyers of New Jersey all urge the court to uphold the standing decision of State v. Pena-Flores.  They all agree that police should have probable cause along with extenuating circumstances to search a vehicle.   To further that point, it has been noted that police should not even ask for consent to search without it.  Kirsch said, “The state didn’t give you any reason to adopt the dissent… They just point to it and say, ‘That’s what we want.’”

The last time the state attempted to have Pena-Flores overturned was three years ago in State v. Shannon.  That motion failed because the presentation made by the prosecutors (provided from the state police motor vehicle data) was too thin.  No decision has been made yet as to the outcome of this hearing.  It has been noted that the composition of the New Jersey Supreme Court has changed significantly since the 2009 decision, so it’s difficult to say which way the court will decide.

For the moment, the ruling of State v. Pena-Flores still stands.  What does that mean for you?  A police officer still needs probable cause to perform a search on your automobile without a warrant.  In the event you feel your rights have been violated, seek legal assistance as soon as possible.  Call me, David Barry, Attorney at Law today at (732) 238-8686.