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State v. Pena-Flores, NJ, AG Letter Urging Postponment Pending Telephone Warrant System (2009)

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PO Box 080
NJ 08625-0080
March 9, 2009




Attorney General

Honorable Chief Justice and Associate Justices
Supreme Court of New Jersey
Richard J. Hughes Justice Complex
Trenton, New Jersey 08625
Re: State v. Juan Pena-Flores, et al.
Docket No. 60,886
State v. Charles Fuller
Docket No. 60;986
Your Honors:
We urge this Court to postpone application of the exigency
analysis enunciated by the Court in these consolidated cases
until the procedural changes identified by the Court, namely a
Statewide telephonic warrant system, are implemented. Slip op.
at 34-35. Without such action, and until a telephonic warrant
system is in place, the Court's decision leaves the State with a
Hobson's choice: whether to routinely impound vehicles and
detain suspects for lengthy periods of time or whether to stop
effectively policing our streets.
This request is necessary because the Court discussed
exigent circumstances such that law enforcement officers
conducting motor vehicle stops will be more likely to secure the
vehicle and detain the occupants while they attempt to obtain a


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warrant. Until telephonic warrants are a realistic possibility,
the result will be increased burdens on law enforcement officers,
judges, motorists, and occupants. The only and entirely
unacceptable alternative would be diminished enforcement to the
detriment of public safety, with less vehicles searched despite
the existence of probable cause. The State, therefore, requests
that this Court postpone the implementation of its holding while'
at the same time moving as expeditiously as possible toward
implementing a Statewide telephonic warrant system.
We recognize that a number of practical and logistical
issues require resolution before telephonic and electronic
warrants can become a "vibrant part of our process." Slip op. at
39. Indeed, this Court acknowledged as much when 1t established
the Task Force, made up of representatives of the Attorney
General, the Prosecutors, the Public Defender, the defense bar,
and the judiciary "to address the practical issues in obtaining
telephonic and electronic warrants."1 Ibid. As the Court
directed, the Task Force's study will "include recommendations
for uniform procedures (including forms), equipment, and
training, along with an evaluation of the scheme once it is
underway." Ibid. (emphasis added to underscore that carefully

We note that there are no police representatives on the
list of anticipated participants in the Task Force. We submit
that police will be in a unique position to offer highly useful,
practical information to the Task Force, and should actively
participate in the problem identification and problem solving
process, just as they contributed to the work of the Special
Committee on Recordation of Custodial Interrogations established
by this Court in State v. Cook, 179 N.J. 533 (2004).

crafted telephonic warrant scheme has not yet been developed or
implemented). All of this recognizes that the infrastructure for
obtaining telephonic warrants at all, let alone on a scale
sufficient to handle the potentially thousands of cases arising
out of motor vehicle stops, not only does not exist at present,
but will undoubtedly take some time before it is in place.
The task at hand in implementing a telephonic warrant scheme
as envisioned in the Court's opinion is unprecedented. Indeed,
the State is not aware of any other jurisdiction that has
established a local system, much less a statewide system, to use
telephonic warrants during unplanned roadside encounters. Even
the San Diego program referenced in the Court's opinion did not
involve unexpected roadside encounters, but rather, dealt with
warrant applications for planned narcotics operations.'
Accordingly, until the telephonic warrant system is actually
implemented, this Court should not impose an unrealistic burden
upon law enforcement officers.
Furthermore, the State's request is consistent with the
approach this Court has taken in similar cases. Specifically,
when this Court in State v. Cook established a Committee to

In the San Diego search warrant project, "the overwhelming
majority of search warrants (89%) were directed at private
homes." Laurence A. Benner & Charles T. Samarkos, Searching for
Narcotics in San Diego: Preliminary Findings from the San Diego
Search Warrant Project, 36 Cal. W. L. Rev. 221, 229 (2000).
Furthermore, the authors made clear that "[n]o search warrant was
obtained exclusively to search only an automobile." Id. at 229,
n.28 (reasoning that United States Supreme Court decisions have
"repeatedly held that a search warrant is not necessary to search
or seize a car which is readily mobile if there is probable cause
to search") (citing to Pennsylvania v. Labron).

develop procedures for recording police
interrogations, it did not change the rule
s, or expect police
to change their practices, until after the
Committee had
completed its work. 179 N.J. 533, 561-62
(2004). Even then,
the recordation requirement was imposed
in stages. See R.
3:17 (effective January 1, 2006 in respect
of homicide cases,
and January 1, 2007 in respect of all othe
r offenses
encompassed by Rule). In other words, the
Court gave law
enforcement agencies an opportunity to deve
lop and implement a
system before they were expected to reco
rd custodial
interrogations. So, too, with respect to
telephonic warrants,
courts should not reasonably expect law
enforcement officers to
operate under new rules until the procedur
es, equipment, and
training recommended by the new Task Forc
e are in place.
That said, the State urges the Court to
move with dispatch
in establishing this Task Force and sett
ing a timetable for the
filing of recommendations and the implemen
tation of the system.
The urgency of the charge to the Task Forc
e should be
commensurate with the need to make telephon
ic warrants a
realistic tool as quickly as possible.
For its part, the
State commits to do everything it can to
ensure that this is
Moreover, a telephonic warrant system that
operational as soon as possible is vital
to mitigate against
the adverse consequences that will result
if the Court does not
postpone implementation of its holding.
In particular, there

will be an increase in the number of
cases where a warrant is
sought because, although the Court stat
ed that "[e]xigency must
be determined on a case-by-case basis,"
slip op. at 28, the
most frequently recurring factors deem
ed relevant by the Court
in finding exigency weigh heavily agai
nst such a finding in the
typical, unanticipated motor vehicle
stop. For example, "a low
ratio of officers to suspects and the
lack of available backup"
- while recognized by the Court as supp
orting a finding of
exigency, slip op. at 31, - are two fact
ors that law
enforcement officers always take ever
y effort to minimize to
ensure their safety as well as that of
the individuals stopped.
Likewise, a motor vehicle stop conducte
d in such a way to
satisfy another factor noted by the cour
t, failing to secure an
occupant, is inimical to officer safe
ty, which the Court
acknowledges is one of the "preeminent
determinants of
exigency." Slip op. at 27-28.
Hence, very real concerns for
officer safety require that an officer
purposely avoid
satisfying several of the factors rele
vant to the Court's
exigency determination. Taken togeth
er with the ambiguity
presented by the other factors articula
ted by the Court, the
result is that in many motor vehicle
stops where probable cause
develops spontaneously, police officers
may not proceed under
the automobile exception, but rather,
will seek to secure a
An increase in the number of warrants
sought will result
in greater burdens for law enforcement
officers, judges and

suspected motorists until a telephonic warrant system is in
place. This Court implicitly recognized as much in the Fuller
case when it explained that there was no exigency because
"[t]he vehicle could have been impounded or one officer could
have remained with it while a warrant was sought by telephone
or in person." Slip op. at 34. As discussed above, however,
seeking a warrant by telephone was not a realistic option, nor
is it today.

Consequently, the only remaining and acceptable

option is to arrest the occupants and impound the vehicle while
the officers seek an in-person warrant. That will impose heavy
burdens upon the drivers and passengers who must wait in a
holding cell while an officer seeks the warrant.
In addition, securing the vehicle at the scene is not
realistic in the numerous cases where the stop occurs on the
shoulder of a heavily traveled road. Under those conditions,
the risk of injury to both the officers and the individuals
stopped is too great to justify remaining at the scene while an
officer attempts to secure an in-person warrant.
Finally, the need to implement a telephonic warrant system
as soon as possible is critical to avoid a criminal justice
system unable to accommodate the demands imposed by this
Court's opinion. Simply put, the practical effect of the
Court's opinion - increased uncertainty and ambiguity in the
permissibility of a warrantless search and a concomitant
increase in officers seeking to obtain a warrant - may, absent
an effective and efficient system to obtain a telephonic

warrant, cause law enforcement officers to forego
warrants as the length of time that vehicles are impou


motorists detained grows. Any potential diminished
would occur to the detriment of public safety, as
decisions will not result from a lack of probable
cause. As it
is, the number of cases where uncertainty and ambig
uity may
compel an officer to obtain a warrant will necessary
result in
officers spending more time impounding or securing
vehicles and
awaiting the return of a warrant rather than carry
ing out their
duties to protect the public.
In sum, the State will, of course, continue to work
prosecutors and law enforcement officers to align
practices and
procedures to the holding, consistent with officer
safety, the
safety and rights of individuals stopped, and the
detection and prosecution of criminal offenses.


the standard adopted by the Court for assessing the
required to justify a search under the automobile
will make it difficult, if not impossible, for law
officers to understand whether they may proceed under
exception or should seek a warrant; will, thus, incre
ase the
need to obtain warrants as officers will not want
to risk the
suppression of contraband or other evidence of a crime
or lead
to lack of effective policing in our communities;
and, as a
result, will impose a heavy burden upon law enforcemen
officers, judges, and suspected motorists. Those
burdens upon
the officers, judges, and motorists will only incre
ase if the


Court's holding is not postponed until a Statewide telephonic
warrant system is in place. At the same time, we urge the
Court to act as expeditiously as possible in implementing a
telephonic warrant system.
Respectfully Submitted,

lgram .
y General