Sunday, August 1, 2010

More Than a Whiff of Weed Needed for Warrantless Truck Search, N.J. Court Rules

Applying retroactively State v. Pena-Flores, 198 N.J. 6 (2009), which requires both probable cause and exigent circumstances for a warrantless search, the judges in State v. Pompa, A-0139-08, said a strong odor of marijuana could supply the former but not the latter. Unless the driver consents, a warrantless search can be conducted only if a three-part test is satisfied: the stop is unexpected; police have probable cause the vehicle contains contraband or evidence of a crime; and exigent circumstances make it impracticable to seek a warrant. Fisher said the first two Pena-Flores requirements were satisfied but not the third.

Fisher said it would have been permissible under the business exception to search the sleeping compartment without a warrant to determine if it met DOT safety regulations. "However, the regulations do not encompass closets or personal belongings inside a sleeper cabin and, as a result, the closely regulated business exception cannot form the basis for a warrantless search into those areas," he said.

Public Defender Yvonne Smith Segars called the ruling a "common sense application of the rules set forth by the Supreme Court in Pena-Flores governing the search of moving vehicles."