New Jersey State Bar Association - The voluntary Bar Association of New Jersey, serving members since 1899.

Capitol Report

April 13, 2015

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit

Supreme Court to Hear Oral Argument Revisiting Automobile Exception of Warrant Requirement

The New Jersey Supreme Court will hear oral arguments on whether it should reverse itself on the standard set forth in State v. Pena-Flores, 198 N.J. 6 (2009), regarding warrantless searches of automobiles. On Tuesday, the Court will entertain argument in State v. Witt, Docket No. 074468, regarding whether the automobile exception of the warrant requirement applied to permit a search of the defendant’s vehicle and seizure of a handgun from the console. The trial court granted the defendant’s motion to suppress evidence seized during the warrantless search; the decision was affirmed by the Appellate Division on an interlocutory appeal. New Jersey State Bar Association (NJSBA) member Jeffrey Evan Gold will argue in support of the amicus curiae in support of Witt. The brief was written by Gold and NJSBA members Kimberly Yonta and Justin M. Moles.

The state challenges the exigent circumstances test articulated under Pena-Flores, calling the test unworkable, resulting in officers’ reliance upon consent searches. Under the test, a warrantless search of an automobile in New Jersey is permissible where: 1) the stop is unexpected; 2) the police have probable cause to believe the vehicle contains contraband or evidence of a crime; and 3) exigent circumstances exist under which it is impracticable to obtain a warrant. Pena-Flores, 198 N.J. at 28. The exigency must be determined on a case-by-case basis, based on a totality of the circumstances. Considerations include the time of day, ratio of officers to suspects, and the existence of confederates who know the location of the car and could remove it or its contents. Id., at 28-29.

In Witt, the defendant was pulled over at 2 a.m. on suspicion of driving under the influence for failing to dim his headlights as he drove past the officer, who had conducted a traffic stop in the opposite direction. Witt was alone. The officer arrested him after determining he was driving under the influence. The officer called for backup during the field sobriety test and was, therefore, not alone. After Witt’s arrest, the officer conducted a search of his car without requesting a warrant. In the center console he discovered a handgun, which he seized. The discovery led to additional charges against Witt for unlawful possession of a firearm and unlawful possession of a firearm by a convicted felon.

Witt argued the officer did not have reasonable suspicion to stop him, and that the evidence seized should be suppressed because the search was unlawful. The state appealed the lower court’s decision, granting Witt’s motion to suppress the evidence, arguing the longstanding exigent circumstances test of the automobile exception as articulated in Pena-Flores is “unworkable,” and urging the court to “replace” the test. In holding that the state’s appeal was meritless, the Appellate Division noted it does not have the authority to replace the test with another legal principle. It further held that there was an “utter absence of any exigency to support the warrantless vehicle search that occurred,” as well the lack of justification for the motor vehicle stop. State v. Witt, Docket No. A-0866-13T2, p. 2 (App. Div. May 21, 2014).

With respect to the motor vehicle stop, the Appellate Division pointed out that N.J.S.A. 39:3-60 only applies when a driver leaves his or her high beams on within 500 feet of an oncoming vehicle. Id., at pp. 8-9. Based upon the officer’s testimony that he was parked on the opposite side of the road conducting another vehicle stop, the court held that Witt was not prohibited from driving with his high beams on, consequently there was no reasonable suspicion that he had violated the statute. Id., at pp. 9-10. On this point, the NJSBA argues that evidence seized as a result of the stop is “fruit of the poisonous tree” and, therefore, the automobile exception need not be addressed.

Arguing against abrogation of the Pena-Flores test, the NJSBA points out the lack of support in the state’s argument that the test is unworkable. The state relies on statistics showing that officers rely more often on the consent-search doctrine as a result of the Pena-Flores test. The NJSBA argues the statistics actually support the notion that consent searches are a well-recognized, constitutionally permissible alternative to the warrant requirement.

In arguing that modern technology has changed the consideration of circumstances to establish exigency, the association further states, “Pena-Flores strikes a fair balance between protecting the privacy of New Jersey’s citizens navigating the roadways against law enforcement’s occasional inability to obtain a warrant where probable cause is found.”

The following is an excerpt from the NJSBA’s amicus brief:

“Prior to Pena-Flores, there appear to have been more warrantless searches based on probable cause; however, it now appears that those arguably unconstitutional intrusions have been channeled into the constitutionally permissible warrant exception of consent. Although the State views this as problematic, the NJSBA submits that there is nothing wrong with law enforcement using a well-recognized exception to the warrant requirement, so long as they adhere to the safeguards mandated by the doctrine of consent in New Jersey, which requires that (1) the officer have reasonable suspicion before even asking for consent, State v. Carty, 170 N.J. 632, 646 (2002), and (2) the subject be advised of the right to refuse before any consent is given, State v. Johnson, 68 N.J. 349 (1975).

Thus, the NJSBA submits the statistics amassed by the state do not point to a problem that needs to be addressed; rather, they confirm that Pena-Flores represents well-grounded, well-reasoned precedent that has achieved the precise good that was intended—ensuring that warrantless searches of automobiles are conducted without offending our state’s Constitution.”

Third Circuit Welcomes Comments to Revised Amendments to Rules of Attorney Discipline

The Third Circuit Court of Appeals posted revised amendments to the Rules of Attorney Discipline to reflect public comments. The NJSBA submitted comments in response to the first publication of the amendments, many of which were adopted in the revisions as noted. The revisions include:

-       A clarification that an attorney is held only to the rules of court in force in the state of his or her admission (Rule 2(d)). The NJSBA recommended this change.

-       Allowing an extension of time to file an answer to a rule to show cause (Rules 4 and 6.5). The NJSBA recommended this change.

-       Clarifying that an attorney’s obligation to serve a copy of any show cause order on his or her clients is a continuing one (Rules 6.6 and 8.2).

-       Adding that closing cases opened in error applies to disciplinary proceedings (Rule 18.4).

-       Adding language to make clear that a suspension pending disciplinary proceedings is rare and giving an attorney the opportunity in the answer or at a hearing on the merits to request reinstatement pending resolution of the disciplinary action (Rule 7.2).

The revised amendments also contain a substantially rewritten Rule 17 regarding the automatic inactive status of an attorney who has not entered an appearance in the Third Circuit for five years or who has not filed a form updating contact information. The initial amendments were recalled pending further review and, as a result, the NJSBA reserved comment. This is the first time this rewritten rule is available for comment.

The revised amendments may be reviewed online at Comments to the revised amendments must be received by the clerk of the court by June 1. They may be mailed or emailed as follows:

Marcia Waldron, Clerk of Court

21400 United States Courthouse

601 Market Street

Philadelphia, PA 19106

Proposed Rules by the Casino Control Commission Open for Comment

The Office of Administrative Law has published a notice of proposal to readopt the Special Hearing Rules on Casino Control Commission with amendments. The amendments are limited to N.J.A.C. 1:19 to repeal the rule on emergency relief in keeping with a statutory reassignment of authority, to correct references to repealed legal authorities with references to current statutes and rules, and to delete provisions no longer supported in the statutes amended under P.L. 2011, c. 19. The amendments may be reviewed at Comments must be submitted by May 15, and may be transmitted by mail or email as follows:

Sandra DeSarno Hlatky, Assistant Director

Office of Administrative Law

Quakerbridge Plaza, Bldg. 9

P.O. Box 049

Quakerbridge Road

Trenton, NJ 08625

Past issues of the Capitol Report