Exigent Circumstances

It Doesn’t Takes 8 Hours for the Police to Get a Warrant

My client was sitting on the hood of his car in a mall parking lot, hemmed in by three squad cars and several policemen when my he called me. The police were trying to convince him to execute a written consent to search his car. Because the police were right there he couldn’t say much other than they suspected someone had made a call from his car to make a drug buy. The client denied it, and I didn’t ask him to elaborate but the chances of at least a roach in car’s ashtray were pretty good.

To persuade him to sign the consent, the cops claimed they it could take eight hours to get a warrant. Towing his car was another possible outcome unless he consented. And lastly they could call in the CDS dogs to sniff his car for drugs.

First of all the police have no right to even ask for a consent to search unless they have a “reasonable suspicion” a crime has been committed. The alleged phone call, if later proven, would have satisfied that requirement. But they would need a warrant to get in the car and for that they needed probable cause.

What struck me was the threat to call in the dogs. In order to get a warrant the cops needed “ probable cause”. If they have to call in the dogs it means they didn’t have probable cause unless the dog makes a hit. And without an arrest for a criminal offense the car was not going to be towed.

But if the client consented to a search and a roach was found , he was exposed to the charge of Operating a Vehicle While Knowingly Possessing CDS , N.J.S.A 39:4-49.1, which requires A TWO YEAR LOSS OF LICENSE -- far more severe than a even a DWI.

After we talked the client told them to go get the warrant.

Rule 3:5-3 states that a Judge may issue a search warrant upon the sworn statement of an officer who is not present but who is communicating by  “telephone, radio or other means of electronic communication”  

It requires,

“A warrant may issue if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure to obtain a written warrant, and that sufficient grounds for granting the application have been shown”

If you’re pulled over by the side of the road, a policeman can call, say it’s a roadside stop, explain why its’ exigent, and if he has probable cause , get a warrant.

“When the circumstances are sufficiently exigent that appearing before a judge to obtain a written warrant is either impossible or impracticable, but no so exigent that there is insufficient time to stabilize the situation and call for a warrant, police officers must obtain a telephonic warrant than conduct a warrentless search or seizure.”

State v Johnson 193 N.J.528,556 ( 2008) 

It doesn’t take 8 hours to dial up the cellphone to reach the always on duty emergent judge. Easy for a policeman to do, if he has probable cause. When they tell you it takes eight hours, you know they’re conning you.

 The United States Supreme Court recently recognized this in McNeely v. Missouri, decided April 17, 2013. The issue was whether the police could obtain the blood sample from a man charged with DWI without first getting his consent.

The police claimed that by the time they found a judge and got a warrant the blood would naturally dissipate the alcohol in a person’s bloodstream -- evidence of drunk driving --- would be gradually destroyed .

The Supreme Court held, the mere fact of the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

Justice Sotomayor stressed that state and local governments have adopted a number of new procedures that make it easier, and faster, to get blood-test warrants, and that those procedures will help to assure that blood alcohol evidence does not disappear before a test could be made.  (One of the states mentioned in the footnote to that statement was New Jersey and Rule3:5-3)

The police can always try to claim there were exigent circumstances and they had no time to get a warrant. But later in court they have to prove those circumstances existed for the search to stand. If you consent to the search you waive that requirement .You give away your case before you get to court.

A day later my client called and said he was released an hour and a half later and drove away in his car.