In 2009, the New Jersey Supreme Court changed the landscape in cases involving automobile stops. In essence, the Court ruled in the case of State v. Pena-Flores, that in order to justify a warrantless search of a motor vehicle, the government must establish that the stop was unexpected; that there was probable cause; and, that they were special circumstances that prevented the government from obtaining a warrant. Since that time, a number of cases have been decided by the Appellate Division where the court has ruled that the government’s search of a motor vehicle was illicit.

Last month, another Appellate Division panel found that the government failed to establish the  factual predicates required by Pena-Flores.  In that case, a police officer in an unmarked vehicle observed defendant’s vehicle speed through a red light. For reasons not disclosed, the police officer did not want to stop the defendant in an unmarked car. Nonetheless, he continued his surveillance.  At one point, this first police offer  contacted a second officer in a marked car. When the second officer saw the defendant run a stop sign, he pulled the vehicle over.  Shortly thereafter, an additional marked car, along with a K-9 unit responded to the stop site. The police officers claimed that they detected an odor of raw marijuana and that the defendant appeared nervous. The defendant was patted down and in the process  $4000 in cash was discovered. In addition, the dog with the K-9 unit identified the presence of narcotics. The vehicle was searched and bags of marijuana, other drugs and distribution paraphernalia were found along with a machete. At the suppression hearing, the investigating police officer said that he did not make an effort to obtain a warrant because the stop occurred close to defendant's home and he was afraid that a family member would obtain access to the vehicle with another key. Moreover, the police officer said that, although he was aware of the opportunity to obtain a telephonic warrant, he did not request one.

The Appellate Division found the police officers’ conduct illicit. Noting that the stop was not late at night; that it was in a residential area; and, that there were four police officers at the stop site.  Resultantly, the court concluded that an effort to obtain a telephonic warrant was required.