NJ still has an automobile exception that doesn’t require a warrant on exigency

The automobile exception in New Jersey isn’t as stringent as it previously was in Witt. Officers can elect to search under the automobile exception on the street or later at impound, and a search warrant is always required. State v. Rodriguez, 2019 N.J. Super. LEXIS 59 (May 3, 2019):

The Public Defender contends the position advocated by the State will result in greater risks to the personal safety of police officers who attempt to search a car at the side of the road, and will also cause a greater infringement on the liberty and privacy of motorists. Neither of those propositions is inexorably true.

In some instances, the police having probable cause will nevertheless choose to wait to search the vehicle with a warrant at a later time because of heavy traffic, poor lighting, weather conditions, security concerns, or other practical considerations. At times, officers may conduct only a cursory inspection at the scene and seek to conduct a more extensive search post-impoundment.

Moreover, an immediate search will not necessarily lead to greater infringements upon the personal liberty of all motorists. For example, in some instances (albeit not this particular case), an on-the-spot search will turn up nothing, and the stopped motorist may be free to drive away with only a traffic citation. An inflexible rule of mandatory impoundment could impose greater inconvenience upon motorists, particularly if the vehicle’s owner, a relative, or a friend of the motorist is nearby and able to come and remove the vehicle from the scene. Id. at 415 (noting that if a vehicle is impounded, the period of detention of its occupants “will be extended”).

That said, we do appreciate there are competing policy arguments presented here concerning the appropriate scope of Witt, and fairly debatable questions surrounding when impoundment should be the preferred course of action. Even so, it is not our role as an intermediate appellate court to engraft upon Witt an exception that was not expressed in the Court’s detailed majority opinion. State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976) (noting our limited role as an intermediate appellate court).

Consequently, we reverse the trial court’s suppression order, which was erroneously based upon a no-longer-required showing of exigency that the Court repudiated in Witt. The record here demonstrates the police at the roadside had ample probable cause to believe the Jeep contained additional quantities of marijuana and potentially other evidence of illegal activity. The persisting smell of raw marijuana detected by Officer Olah — who the trial court found to be a credible witness — supplied the police with probable cause to search the rear cargo area within the Jeep from which the smell appeared to be emanating. See State v. Myers, 442 N.J. Super. 287, 297 (App. Div. 2015) (recognizing a police officer’s detection of the odor of marijuana can suffice as probable cause that an offense has been committed). Furthermore, the probable cause here arose spontaneously.