Can Police Search Your Car Without Your Consent in NJ?
May 4, 2020
The question of can police search your car without your consent in NJ is a common one I receive. After all, most drug and gun possession charges occur following a motor vehicle stop and car search by the police. I have litigated this issue countless times both as a prosecutor and defense attorney. If you are facing drug possession or gun charges after your car was searched in New Jersey, call my office for a free case evaluation.
Was the Stop that Preceded the Car Search Lawful?
First, it is important to remember that a police officer in NJ is not allowed to stop your car for no reason. Instead, they must have a “articulable and reasonable suspicion” that the driver has committed a motor vehicle offense.” This is from the seminal case of State v. Locurto, 157 N.J. 463.
This is a lower standard than that required to arrest a person. To make an arrest, a police officer must meet the higher probable cause standard. When deciding whether the police met this standard, a judge or court will use common sense and view the totality of the circumstances surrounding the case.
When Can Police Officers Ask for Your Consent to Search a Car?
Police cannot automatically ask permission to search your car in New Jersey. Consent searches of cars stopped by NJ police are valid only if certain conditions are met. There are two requirements the state must meet. First, there must be reasonable and articulable more than the initial valid motor vehicle stop to continue the detention after completion of the valid traffic stop. Second, the consent must be “given knowingly and voluntarily.” The critical point that determines whether voluntary consent was given is whether a person knew they had the right to refuse to allow the search to occur. The burden is on the state to establish this.
There are other factors that a court can use to determine whether your consent. These were set forth in the seminal NJ case State v. King. These include the issue of whether you were already under arrest. If you were already under arrest before you gave consent, this goes in your favor when challenging a consent search. The second factor is whether you asserted your innocence to the police before giving consent. This also bodes in your favor.
The third factor is whether you initially refused to give consent but then agreed. This can occur if you are repeatedly asked to give consent by the police. The fourth factor is whether or not you were handcuffed when you agreed to allow a search. This can also help your case.
Do the Police Even Need Your Consent?
NJ car search law has changed dramatically in recent years. In general, any search, including that of a car, required a warrant. Without a warrant, some exception to the warrant requirement would need to apply. This included consent, and also the former “automobile exception” to the warrant requirement. This required both probable case and exigency. Exigency meant some emergent reason why police could not get a warrant.
This all changed when the NJ Supreme Court decided the case of State v. Witt. In Witt, the Court reversed the long standing laws governing car searches. Now, as long as police had the right to stop the vehicle, and probable cause to believe the car contains contraband, they may simply search the vehicle on the stop. Probable cause can be, and often is, based on the smell of marijuana in the vehicle.
Get the Evidence Thrown Out
The way to challenge a police car search is through a motion to suppress evidence. I have handled countless suppression motions in both municipal and superior court. Call my office for a free consultation on your case if you believe police wrongfully searched your vehicle.