Exigency No Longer Needed for Telephonic Search Warrant

In what will surely be regarded as a landmark decision, the New Jersey Supreme Court by a 4-3 vote announced this morning in State v. Pena-Flores, that it will henceforth drop the requirement for a finding of exigency as a condition for the issuance of a telephonic search warrant. In the future, the Court will not make any distinction between a telephonic search warrant and one that has been granted in the traditional manner through a personal appearance before a neutral and detached judge. The Part III Rules of Court will be amended accordingly.

The Pena-Flores case also provides police and prosecutors with detailed guidance on when exigent circumstances exist during the course of a motor vehicle stop sufficient to support a warrantless search of a motor vehicle under the automobile exception. According to the Court, the purpose behind this exception to the warrant requirement is based upon notions of law enforcement safety and preservation of evidence. Under New Jersey law, this exception must be supported by both probable cause and exigent circumstances. Among the factors to be considered by the courts in judging the reasonableness of police conduct on issues of exigency are the following:

The time of day;
The location of the stop;
The nature of the neighborhood;
The unfolding of the events establishing probable cause;
The ratio of officers to suspects;
The 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.

In short, the Court held that exigent circumstances are present when officers do not have sufficient time to obtain any form of warrant.

Finally, please note that in this case the Court authorized a motor vehicle search for documents by the police in a situation where the driver cannot provide or locate legally correct documents for the vehicle. This practice was previously disapproved by the Court in State v. Lark, 163 N.J. 294 (2000), although the majority opinion does not cite to Lark in the opinion.

Down load a copy of State v. Pena-Flores.

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