from the more-exception,-less-rule dept
We've written before about how limited the Fourth Amendment is when applied to drivers and their vehicles. A number of court decisions -- along with continually-reinforced exceptions -- have allowed police to pull over motorists for any reason imaginable. Once they have someone pulled over, it's just a matter of obtaining consent from the driver or, failing that, coming up with a reasonable approximation of probable cause. (Drug dogs are a favorite.) After that, no warrant is needed to search the vehicle, along with the contents of any container found within it.
The "automobile exception" is the federal standard. Not every state has adopted it but a majority of them have. Until recently, New Jersey hadn't. Under its former standard, the motor vehicle exception did not exist. Police officers looking to search a vehicle without a warrant needed to make use of the "exigent circumstances" exception.
To no one's surprise, obtaining warrants was the least popular option. When "exigent circumstances" failed to present themselves, cops would instead try to obtain consent. It sounds like New Jersey's stricter reading of constitutional rights meant officers were less inclined to perform warrantless searches, but this is only an illusion. In striking down this requirement, the New Jersey high court presented a clearer picture of what was actually happening in the absence of a motor vehicle exception.
The New Jersey high court concluded that imposing the added condition of an emergency was impractically strict and led to an unintended surge of highway stops in which police induced drivers to allow them to look through their cars.Inducement was the primary tactic. The state also offered an expedited warrant request system, but it failed to speed up the process.
[Justice Barry T. Albin] said the state experimented with “telephonic” search warrants in which officers connected with the court remotely through phone conferencing. But the system, he said, failed to live up to its promises and resulted in “unacceptably prolonged roadway stops.”So, this didn't work. A footnote from the dissenting opinion indicates why. It's not that the system wasn't fast enough. It's that it was only used when other options had failed.
The state court system tested out the technology in 2012 with a pilot program. In one county where it was tried out, it took an average of 59 minutes for police to get a roadside warrant approved. In another part of the state, it often took as long as two hours.
According to the State, the pilot program “by its very design, reveals why telephonic warrants are not likely to emerge as a viable replacement for the automobile exception.” The State contends that “[a]ll of the participants in the pilot program understood that police officers would continue their post-Pena-Flores practice of requesting motorists to consent to a search” prior to trying to obtain a telephonic warrant.This "consent first" approach to vehicle searches is what stretched out these stops to nearly an hour, not the telephonic warrant system. But with the Supreme Court's Rodriguez decision making prolonged traffic stops Constitutionally-unfeasible, this two-step process for effecting a search of a vehicle is no longer an option.
Not that the consent route was any better. The court's decision notes that induced-consent searches have been problematic in the past:
Not long ago, the State Police subjected minority motorists to consent searches on a grossly disproportionate basis because of racial profiling. As a result of the abuse of consent searches, the State Police were placed under the supervision of federal monitors pursuant to a consent decree.Despite these concerns, the court finds the requirement of a warrant to search a stopped motorist's vehicle is too constrictive. It weighs law enforcement's interests against the Fourth Amendment and -- surprise -- finds in favor of law enforcement.
Given the widespread abuse of consent searches, this Court in Carty forbade police officers from making consent-search requests unless they had reasonable and articulable suspicion to believe a vehicle contained contraband or evidence of an offense. Still, that standard does not remove the coercive effect of a search request made to a motorist stopped on the side of a road. We recognized in Carty “the inherently coercive predicament of the driver who is stopped on the highway and faced with the perceived choice of either refusing consent to search and therefore increasing the likelihood of receiving a traffic summons, or giving consent to search in the hope of escaping with only a warning.” Under those and other like circumstances, “it is not a stretch of the imagination to assume that the individual feels compelled to consent.”
The current approach to roadside searches premised on probable cause -- “get a warrant” -- places significant burdens on law enforcement. On the other side of the ledger, we do not perceive any real benefit to our citizenry by the warrant requirement in such cases -- no discernible advancement of their liberty or privacy interests. When a police officer has probable cause to search a car, is a motorist better off being detained on the side of the road for an hour (with all the accompanying dangers) or having his car towed and impounded at headquarters while the police secure a warrant? Is not the seizure of the car and the motorist’s detention “more intrusive than the actual search itself”?It's always disheartening to hear a court conclude that, after weighing all factors, there's not enough of a net gain to civil liberties to prevent further diminishment of Fourth Amendment protections. The court apparently feels motorists would be happier having their rights violated than their car impounded or their traffic stop extended. If this is true, there's no reason for this ruling. Citizens are perfectly capable of weighing these factors and making these decisions themselves. That's exactly what consent is.
Rather than stay ahead of the curve in terms of Constitutional protections, New Jersey's court has opted to let law enforcement needs take priority over the privacy of its residents.