# State of New Jersey v. Shawn M. Fenimore

> New Jersey Superior Court Appellate Division · July 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10481801

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** July 26, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10481801

## How later opinions describe it (automated extraction)

- noting Witt "announced . . . a sharp departure from a more narrow construction of the automobile exception the Court had previously adopted"
- declining to readdress issue decided in prior case which "has stood for twenty years without modification by rule or subsequent case law"

## Opinion text

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2246-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN M. FENIMORE,
a/k/a SHAWN FENIMORE,
and SHAWN MICHAEL
FENIMORE,

Defendant-Appellant.
_______________________

Argued May 21, 2024 – Decided July 26, 2024

Before Judges Natali and Haas.

On appeal from the Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 21-08-0541.

Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer Nicole Sellitti,
Public Defender, attorney; Tamar Y. Lerer, of counsel
and on the briefs).

Sarah D. Brigham, Deputy Attorney General, argued
the cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Sarah D. Brigham, of counsel and on
the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant Shawn

Fenimore pled guilty to second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5b(1), and third-degree possession of a controlled dangerous

substance, N.J.S.A. 2C:35-10a(1), and was sentenced consistent with his

negotiated plea to a five-year custodial sentence with one year parole

ineligibility on the weapon offense, concurrent to a three-year sentence on the

controlled substance charge. He appeals from the decision denying his

suppression application and raises the following issues for our consideration:

I. THE SEARCH OF DEFENDANT'S CAR WAS
UNLAWFUL.

A. The automobile exception does not allow for
warrantless searches of vehicles that are located at
the police station and whose drivers are already
detained.

B. There was no probable cause to suspect there would
be contraband in the car.

C. If there was probable cause, the circumstances that
gave rise to it were not spontaneous and
unforeseeable.

D. The search of the car was illegal and the evidence
must be suppressed.

A-2246-22
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We reject defendant's arguments and affirm.

I.

The events leading to defendant's indictments were described in detail at

a February 4, 2022 suppression hearing at which Trooper Daniel Radetich of the

New Jersey State Police testified. 1 Trooper Radetich explained an individual

came to the police and accused defendant of harassment, including an allegation

he struck someone with his car while under the influence of drugs. Sometime

thereafter, Trooper Radetich called defendant and requested he come to the

Woodstown State Police station to provide a statement with respect to the

harassment allegation. After the call, Trooper Radetich told other officers, "I

think [defendant is] intoxicated, possibly," as his voice was "raspy" and he

"slurr[ed] his words."

Defendant arrived at the station between one and two hours later. From

the station lobby, Trooper Radetich observed defendant pull into the station

parking lot, exit the driver-side of a vehicle, and "stumble . . . almost into the

station wall." Trooper Radetich then brought defendant into an interview room,

1
Co-defendant Nicolas G. Luzzo also participated in the suppression hearing,
but is not a party to this appeal.

A-2246-22
3
read him his Miranda2 rights, and began speaking to him about the harassment

complaint.3 The interview was not recorded.

In describing defendant's demeanor, Trooper Radetich testified, "[h]e was

slouched in his chair. His voice was slow and his voice was raspy. His eyes

were pinpoint." Trooper Radetich also identified "a fresh track mark" on one of

defendant's arms and a white substance on the side of his mouth, which Trooper

Radetich recognized as signs of drug use. Based on these observations, Trooper

Radetich believed defendant was "possibly," at that time, under the influence of

narcotics. When Trooper Radetich asked defendant if he had "taken anything,"

defendant simply stated he was "just tired."

Trooper Radetich testified he "didn't feel confident with [defendant]

leaving the station," and conducted a series of field sobriety tests, specifically

the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand

test. Having failed the latter two tests, Trooper Radetich arrested defendant for

driving while intoxicated (DWI), secured defendant to a holding cell bench, and

informed him officers were going to conduct "a probable cause search of his

2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Trooper Radetich testified defendant signed a Miranda card acknowledging
and waiving his rights, but that card is not in the record before us.
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4
vehicle for intoxicants." Trooper Radetich described defendant as "hysterical"

after his arrest, leading Trooper Radetich to believe defendant "was afraid that

there was something" in the car.

Trooper Radetich's body-worn camera footage of the search was played at

the suppression hearing. While Trooper Radetich and four other troopers were

removing co-defendant Luzzo from the passenger seat of the vehicle, Trooper

Radetich stated, "[h]ere's the keys."4 During the search of the vehicle, troopers

located four wax folds of heroin and a needle in the center console and a gun

loaded with seventeen rounds of ammunition wrapped in a towel in a plastic bag

in the backseat, and Trooper Radetich stated, "[t]here's a gun in here. I knew

it." The search also uncovered seven iPhones, four car keys for different makes

of cars, bolt cutters, and a tool used to break windows. 5

After the search, Trooper Radetich spoke to defendant in an interview

room and re-read him his Miranda rights, which defendant waived. Trooper

Radetich stated the second interview of defendant occurred about two hours after

his initial arrival and was recorded on Trooper Radetich's body-worn camera.

4
The record does not indicate from where Trooper Radetich obtained the keys
to defendant's vehicle.
5
Defendant does not challenge the scope of the troopers' search of the vehicle's
interior.
A-2246-22
5
Defendant claimed ownership of two bags of heroin in the center console, but

denied ownership of the other items. Defendant also admitted he "used some"

heroin several hours before coming to the police station.

As a result of the search, defendant was charged with: second-degree

unlawful possession of a weapon, third-degree possession of a controlled

dangerous substance, and fourth-degree possession of a prohibited device.

Defendant was also charged in a separate indictment with an additional count of

third-degree possession of a controlled dangerous substance, contrary to

N.J.S.A. 2C:35-10(a)(1).

As noted, defendant moved to suppress the evidence discovered during

the warrantless search of his vehicle. During the hearing, Trooper Radetich

acknowledged on cross-examination when someone is arrested for driving while

intoxicated, the vehicle will be impounded under John's Law,6 and therefore

6
N.J.S.A. 39:4-50.22 and - 50.23 generally require a vehicle be impounded for
at least twelve hours when the driver is arrested for DWI or refuses to submit to
a chemical breath test. Impoundment, however, "is not automatically required
in all DWI cases" because "John's Law 'does not negate the [c]onstitutional right
of the arrested person to make other arrangements for the removal of the vehicle
by another person who is present at the scene of the arrest.'" State v. Courtney,
478 N.J. Super. 81, 95 n.4 (App. Div.), leave to appeal denied, 257 N.J. 413
(2024) (quoting Off. of the Att'y Gen., Law Enf't Directive No. 2004-1,
Appendix B, Guidelines Mandatory 12-Hour Impoundment of Motor Vehicles
(Feb. 20, 2004)).
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defendant's car "wasn't going anywhere" for at least twelve hours. When asked

why he did not obtain a warrant prior to searching defendant's car, the following

colloquy occurred:

[Trooper Radetich]: Because that's our stan -- every
time we're doing (indiscernible), it's the same exact
standard process. When you're arrested for John’s Law,
we have the right to a probable cause search of their
vehicle and we search their vehicle for intoxicants.

[Counsel]: Okay. That's when you're on the side of the
road, isn't it?

[Trooper Radetich]: No, it could happen in a Walmart
parking lot. It could happen anywhere. The location
does not change that.

[Counsel]: What about the police barracks, does that
change it?

[Trooper Radetich]: No, it does not change that.

The court denied defendant's application to suppress in an oral decision

and subsequently issued a conforming order. The court recognized State v. Witt,

223 N.J. 409 (2015) was "certainly" the case to consider "in analyzing these

circumstances," and explained Witt requires "there be spontaneous and

unforeseen circumstances and probable cause before a [warrantless] search of a

motor vehicle can be made." The court rejected defendant's argument the

circumstances were not spontaneous and unforeseeable because defendant was

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asked to come to police station and "[w]hen [defendant] arrived at the barracks,

it became immediately apparent to the trooper that the defendant appeared to be

under the influence. And that was spontaneous and unforeseeable; thus,

bringing us to consider Witt as allowing the search to take place."

The court acknowledged "[m]ost of the case law concerns roadway stops,"

but concluded defendant's argument his vehicle's presence in a parking lot

rendered a warrantless search under Witt improper lacked support. The court

next addressed John's Law and police's obligation to impound defendant's car

from a police parking lot and considered whether such circumstances "negat[ed]

the ability to have a warrantless search," but stated it was "not aware of any case

law that addresse[d] that issue."7

Ultimately, the court concluded "there was probable cause to believe the

defendant operated the vehicle under the influence; that the police troopers were

justified in searching the vehicle without a search warrant and thereby

discovering the evidence that was contained." As noted, defendant pled guilty

to second-degree unlawful possession of a weapon and third-degree possession

7
The court's oral decision was issued prior to our decision in Courtney, 478
N.J. Super. at 81.
A-2246-22
8
of a controlled substance, and was sentenced as previously noted.8 This appeal

followed.

II.

Defendant argues the court erred in denying his motion to suppress

because: (1) the automobile exception does not allow police to search a vehicle

at a police station that is subject to impoundment; (2) the troopers lacked

probable cause to search his vehicle; and (3) even if probable cause existed, the

circumstances giving rise to such were not spontaneous and unforeseeable.

With respect to defendant's first argument, he contends the automobile

exception, as detailed in Witt, does not apply because his vehicle was not on the

roadway but rather in a police station parking lot subject to impoundment and

he was detained. In support, he highlights a passage from Witt which states,

"[g]oing forward, searches on the roadway based on probable cause arising from

unforeseeable and spontaneous circumstances are permissible. However, when

vehicles are towed and impounded, absent some exigency, a warrant must be

secured." 223 N.J. at 450. Further, defendant argues Witt departs from federal

jurisprudence and precludes police from conducting a warrantless search of a

8
Defendant was also sentenced to concurrent sentences on two unrelated
indictments that are not addressed in this appeal.

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9
vehicle at "headquarters" merely because they could have done so on the

roadside.

Defendant next contends, relying on State v. Jones, 326 N.J. Super. 234,

244-45 (App. Div. 1999), police did not have probable cause as they did not

have a "well-grounded, fact-based suspicion that other drugs or evidence of drug

use would be in the car." Defendant argues the fact a driver was under the

influence of a drug does not categorically give rise to probable cause to believe

drugs or evidence of drug use are in the vehicle.

Additionally, defendant argues even if there was probable cause to search

his vehicle, it did not develop spontaneously and unforeseeably, as required, but

rather resulted from "a concerted and deliberate effort" by police. Relying on

State v. Smart, 253 N.J. 156, 171 (2023), defendant argues the court erred in

concluding defendant being intoxicated was spontaneous and unforeseeable, and

contends his arrival at the station was the first moment of a "multi-step effort"

to gain access to his vehicle.

Defendant claims such steps included the observation of his arms,

questions about his intoxication, and three separate field sobriety tests which

then transformed police's expectations into probable cause. Defendant

acknowledges there "is nothing wrong with officers taking these steps to ripen

A-2246-22
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their suspicion into probable cause," but argues once probable cause was

"painstakingly developed," police were required to obtain a warrant before

searching his vehicle.

For its part, the State maintains the court properly denied defendant's

motion to suppress and contends police had probable cause to search defendant's

vehicle, that such probable cause arose spontaneously and unforeseeably, and

that Witt does not limit the automobile exception solely to roadside searches.

The State acknowledges defendant's vehicle was subject to impoundment under

John's Law, but relying on State v. Rodriguez, 459 N.J. Super. 13, 23 (App. Div.

2019), and Courtney, 478 N.J. Super. at 99, asserts when faced with such a

situation, officers have the discretion to conduct an on-scene search of the

vehicle, or seek a warrant after the vehicle is impounded. Additionally, for the

first time on appeal, the State also contends the search was lawful as a search

incident to arrest.

We disagree with all of defendant's arguments and conclude the court

correctly determined police had probable cause to believe evidence of a crime

was present in defendant's vehicle which arose spontaneously and

unforeseeably, allowing police to conduct a warrantless on-scene search of

defendant's vehicle.

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III.

Our review of a trial judge's decision on a motion to suppress is limited.

State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing such an application, we

must uphold the judge's factual findings, "so long as those findings are supported

by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424,

440 (2013) (quoting Robinson, 200 N.J. at 15). "Those findings warrant

particular deference when they are 'substantially influenced by [the trial judge's]

opportunity to hear and see the witnesses and to have the "feel" of the case,

which a reviewing court cannot enjoy.'" Ibid. (alteration in original). We review

de novo the judge's pure determinations of law, State v. Mann, 203 N.J. 328,

337 (2010), as well as the application of legal principles to factual findings ,

State v. Harris, 181 N.J. 391, 416 (2004).

"The Fourth Amendment of the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution, in almost identical language,

protect against unreasonable searches and seizures." Smart, 253 N.J. at 164

(quoting State v. Nyema, 249 N.J. 509, 527 (2022)). Warrantless searches are

presumptively invalid because they are contrary to the United States and the

New Jersey Constitutions, State v. Pineiro, 181 N.J. 13, 19 (2009), and "[t]he

A-2246-22
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warrant requirement . . . may be dispensed with in only a few narrowly

circumscribed exceptions," State v. Patino, 83 N.J. 1, 7 (1980).

"To justify a warrantless search or seizure, 'the State bears the burden of

proving by a preponderance of the evidence that [the] warrantless search or

seizure falls within one of the few well-delineated exceptions to the warrant

requirement.'" State v. Vanderee, 476 N.J. Super. 214, 230 (App. Div. 2023)

(quoting State v. Chisum, 236 N.J. 530, 546 (2019)). Each exception to the

warrant requirement has its own essential elements that must be satisfied to

justify a warrantless search. State v. Johnson, 476 N.J. Super. 1, 20 (App. Div.

2023).

To conduct a search under the automobile exception to the warrant

requirement, the State must satisfy the test set forth in Witt, 223 N.J. at 446-48,

which requires it "prove that probable cause to believe the vehicle contains

contraband or other evidence of unlawful activity arose spontaneously and

unforeseeably," Courtney, 478 N.J. Super. at 93 (citing Witt, 223 N.J. at 446-

48), and did not exist "well in advance of the search," Smart, 253 N.J. at 174.

This test represents a "a sharp departure from a more narrow construction of the

automobile exception previously adopted." Rodriguez, 459 N.J. Super. at 21.

A-2246-22
13
Central to the parties' arguments in this case is the precise language of our

Supreme Court's decision in Witt, wherein the court identified three rationales

for the automobile exception:

(1) the inherent mobility of the vehicle, Carroll v.
United States, 267 U.S. 132, 153 (1925);

(2) the lesser expectation of privacy in an automobile
compared to a home, California v. Carney, 471 U.S.
386, 391-93 (1985); and

(3) the recognition that a Fourth Amendment intrusion
occasioned by a prompt search based on probable cause
is not necessarily greater than a prolonged detention of
the vehicle and its occupants while the police secure a
warrant, Chambers v. Maroney, 399 U.S. 42, 51-52,
(1970).

[Witt, 223 N.J. at 422-23.]

Notably, in Witt, Justice Albin, writing for the Court, detailed the history

of the automobile exception under both federal and New Jersey law. See Witt,

223 N.J. at 422-40. In Courtney, discussing that history, we noted, "[i]t is

sufficient for present purposes to note the New Jersey Supreme Court has

charted its own course, relying on the principle that our State Constitution can

provide greater protections against unreasonable searches and seizures than are

afforded under the United States Constitution." 478 N.J. Super. at 92.

A-2246-22
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"In a nutshell, the divergence between the New Jersey and federal

automobile exceptions focuses on whether and how law enforcement must prove

exigent circumstances to excuse the warrant requirement." Ibid. Under federal

law, probable cause alone is sufficient to satisfy the automobile exception. Witt,

223 N.J. at 422 (citing Maryland v. Dyson, 527 U.S. 465, 467 (1999)). In New

Jersey, however, the automobile exception "has always accounted for case-

specific exigency, not just 'inherent' exigency," but the method of determining

such exigency has undergone significant change. Courtney, 478 N.J. Super. at

92.

In Witt, police conducted a motor vehicle stop after defendant failed to

dim his high beams for an approaching vehicle. 223 N.J. at 416. Defendant

appeared intoxicated, failed field sobriety tests, and was arrested for driving

while intoxicated. Ibid. While searching defendant's vehicle for intoxicants,

police found a gun in the center console. Ibid. The trial court found police

lawfully stopped defendant's vehicle and had probable cause to search the

vehicle for open containers of alcohol, but did not have "sufficient exigent

circumstances" to carry out the warrantless search. Ibid. We affirmed the trial

court's order suppressing the evidence, State v. Witt, 435 N.J. Super. 608, 610-

11 (App. Div. 2014), and the Supreme Court granted the State's motion for leave

A-2246-22
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to appeal, State v. Witt, 219 N.J. 624 (2014). Notably, defendant's "sole

argument" related to the exigent circumstances of the stop, and he did not

challenge the trial court's finding of probable cause. Witt, 223 N.J. at 416.

The Witt Court rejected the multi-factor exigency test used in State v.

Cooke, 163 N.J. 657 (2000) and State v. Pena-Flores, 198 N.J. 6 (2009), as

"unsound in principle and unworkable in practice." 223 N.J. at 447. The Court

replaced that exigency test "with a much simpler, more predictable test."

Courtney, 478 N.J. Super. at 92-93. Specifically, the Court "resurrected the

exigency test it developed decades earlier in State v. Alston, 88 N.J. 211 (1981),"

which "requires the State to prove that probable cause to believe the vehicle

contains contraband or other evidence of unlawful activity arose spontaneously

and unforeseeably." Id. at 93; see Witt, 223 N.J. at 446-48.

The Court also imposed another "requirement," which we referred to as

"the location requirement," which is based on the "inherent exigency associated

with roadside stops." Courtney, 478 N.J. Super. at 94 (emphasis in original).

Justice Albin explained:

We also part from federal jurisprudence that allows a
police officer to conduct a warrantless search at
headquarters merely because he could have done so on
the side of the road. See Chambers, [] 399 U.S. at 52.
"Whatever inherent exigency justifies a warrantless
search at the scene under the automobile exception

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certainly cannot justify the failure to secure a warrant
after towing and impounding the car" at headquarters
when it is practicable to do so. Pena-Flores, [] 198 N.J.
at 39 n.1 (Albin, J., dissenting). Warrantless searches
should not be based on fake exigencies. Therefore,
under Article I, Paragraph 7 of the New Jersey
Constitution, we limit the automobile exception to on-
scene warrantless searches.

[Witt, 223 N.J. at 448-49.]

The Court specifically stated, "searches on the roadway based on probable

cause arising from unforeseeable and spontaneous circumstances are

permissible," and also noted, "when vehicles are towed and impounded, absent

some exigency, a warrant must be secured." Id. at 450.

The Witt Court further reasoned the return to the Alston standard

"properly balances the individual's privacy and liberty interests and law

enforcement's investigatory demands." 223 N.J. at 447. By way of example,

the court stated, "if a police officer has probable cause to search a car and is

looking for that car, then it is reasonable to expect the officer to secure a warrant

if it is practicable to do so." Id. at 447-48. Such a requirement "eliminate[s] . .

. the fear that 'a car parked in the home driveway of vacationing owners would

be a fair target of a warrantless search if the police had probable cause to believe

the vehicle contained drugs.'" Id. at 448 (quoting Cooke, 163 N.J. at 667-68).

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"In the case of the parked car, if the circumstances giving rise to probable cause

were foreseeable and not spontaneous, the warrant requirement applies." Ibid.

In our recent published decision, Courtney, 478 N.J. Super. at 96-97, we

reversed the trial court's order suppressing evidence discovered during a

warrantless on-scene search of vehicle, and held the automobile exception, as

defined in Witt, applies to on-scene searches, even if the vehicle will be

impounded pursuant to John's Law, and the Supreme Court thereafter denied

defendant's motion for leave to appeal, see Courtney, 257 N.J. 413.

We rejected defendant's argument that when a vehicle must be towed, as

a matter of law, police cannot conduct a warrantless search as unsupported both

by the plain language of Witt and "the reasons that prompted the Court to reform

the automobile exception." Courtney, 478 N.J. Super. at 96. Further, we stated

Witt explicitly referred to the requirement of police to obtain a warrant after a

vehicle is towed and impounded and noted "Rodriguez correctly rejected the

notion the Witt location rule applies to impoundments that will be effectuated

in the future." Ibid. Accordingly, we succinctly concluded, when the State

proves probable cause arose unforeseeably and spontaneously, "searches

conducted on-scene are permitted; searches conducted off-scene are not." Id. at

99.

A-2246-22
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In Courtney, we also "reject[ed] the notion that authority to conduct an

on-scene automobile-exception search depends on the reason why the vehicle

will eventually be towed," and noted, "[t]he purpose of a John's Law

impoundment is not to facilitate a police investigation or preserve evidence, but

rather to prevent a drunk driver from regaining possession of the vehicle while

still intoxicated." Id. at 96-97. We recognized John's law is not the only basis

for impounding vehicles and "presume[d] there are countless occasions when

impoundment is all but certain." Id. at 97. Accordingly, we concluded, "[i]f on-

scene searches were categorically precluded when a vehicle is destined to be

impounded, that rule might swallow the automobile exception." Ibid. We also

determined the "likelihood" or "inevitability" of impoundment was not critical

to a Witt analysis and stated, "[r]ather, the clearly-articulated test is whether the

vehicle was actually removed from the scene of the stop before the search was

executed." Ibid.

We also recognized the "reasons that undergird the location restriction" of

the automobile exception, including the "inherent" exigencies of a traffic stop,

such as the risk to officers, motorists, and to unsecured evidence, and noted such

can "essentially [be] presumed," rather than "proved on a case-by-case basis."

Id. at 97-98. Such exigencies "arise[] intrinsically during a traffic stop" and

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"only dissipate . . . once the vehicle is removed to a secure location ," at which

point any exigencies must be proved by the State. Id. at 98-99.

Against these principles, we conclude police lawfully searched

defendant's vehicle without a warrant as the circumstances of this case fit into

the well-delineated automobile exception described in Witt. Simply stated, we

decline to interpret Witt in the manner defendant urges. We acknowledge Witt

made several references to roadside stops, but, considering the decision in its

entirety, we do not interpret such references to necessitate the narrow

application of the automobile exception defendant suggests. Indeed, by

dispensing with "unsound" and "unworkable" "multi-factor test to guide police

officers in determining whether exigent circumstances excused the securing of

a warrant," and replacing such with the Witt test, the Court expanded, rather

than restricted, the automobile exception under New Jersey law. See Witt, 223

N.J. at 414-15; see also Rodriguez, 459 N.J. Super. at 21 (noting Witt

"announced . . . a sharp departure from a more narrow construction of the

automobile exception the Court had previously adopted").

Further, the precise language in Witt also belies defendant's argument, as

Witt does not explicitly hold the automobile exception applies only to roadside

stops. Indeed, if defendant's interpretation of Witt was correct, the Court's

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decision would have overruled cases in which the automobile exception was

applied to parked vehicles, see e.g., State v. Colvin, 123 N.J. 428 (1991) and

State v. Paturzzio, 292 N.J. Super. 542 (App. Div. 1996), and we decline to

conclude the Court would do so only implicitly.

Additionally, as noted, the Witt court expressly stated its holding

"eliminate[s] . . . the fear that 'a car parked in the home driveway of vacationing

owners would be a fair target of a warrantless search if the police had probable

cause to believe the vehicle contained drugs,'" because "if the circumstances

giving rise to probable cause were foreseeable and not spontaneous, the warrant

requirement applies." 223 N.J. at 447-48. We interpret the clear import of such

language to be if the circumstances giving rise to probable cause were

unforeseeable and spontaneous, the parked car in the Court's hypothetical may

be searched without a warrant.

We also disagree with defendant's argument the search was illegal because

his vehicle was in a police parking lot and awaiting impoundment. As noted, in

Courtney, we "decline[d] defendants' request to create a new bright-line rule

making vehicles subject to John's Law categorically ineligible for an on -scene

search under the automobile exception." 478 N.J. Super. at 88. Rather, we

stated, "we read Witt to establish a simple binary test for determining where an

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automobile-exception search can be executed: provided the State has proved

probable cause arose spontaneously and unforeseeably, searches conducted on -

scene are permitted; searches conducted off-scene are not." Id. at 99. Here,

because police did not tow and impound the vehicle, but rather conducted an on-

scene search, defendant's vehicle was mobile and although defendant was

detained, defendant's passenger was not. As such, the exigencies inherent to on-

scene searches, such as the mobility of the vehicle and destruction of evidence,

were present. See Witt, 223 N.J. at 431-32, 448-49.

Further, our conclusion is consistent with New Jersey's "part from federal

jurisprudence" precluding an officer from conducting "a warrantless search at

headquarters merely because he could have done so on the side of the road ."

Witt, 223 N.J. at 448. Indeed, we are satisfied the reference to "headquarters"

referred to a police impound lot, rather than the parking lot of a police station,

as when a vehicle is towed and impounded, it is no longer mobile and the

inherent exigencies supporting an on-scene search dissipate. See id. at 448-49.

Notably, here, troopers did not transport defendant's vehicle to the station,

nor did they accompany or follow him. Further, police did not have custody and

control of defendant's vehicle prior to the search, as is the case when a vehicle

is impounded. As such, the exigencies inherent to an on-scene search had not

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dissipated and search of defendant's vehicle in an unsecured parking lot prior to

impoundment fell squarely within the parameters articulated in Witt and

Courtney.

IV.

Defendant next argues the police did not have probable cause to search

his vehicle as they did not have a "well-grounded, fact-based suspicion that other

drugs or evidence of drug use would be in the car." Defendant asserts the fact

police arrested a driver for driving under the influence does not give rise to

probable cause to believe drugs or evidence of drug use are in the driver's

vehicle. Again, we disagree.

Probable cause is "a well-grounded suspicion that a crime has been or is

being committed." Pineiro, 181 N.J. at 21 (internal citations omitted). "It

requires nothing more than 'a practical, common-sense decision whether, given

all the circumstances . . . there is a fair probability'" that a crime has been

committed. State v. Dangerfield, 171 N.J. 446, 456 (2002) (internal citations

omitted). A totality of the circumstances standard applies to probable cause

determinations because probable cause is a "fluid concept—turning on the

assessment of probabilities in particular factual contexts—not readily, or even

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usefully, reduced to a neat set of legal rules." Schneider v. Simonini, 163 N.J.

336, 361 (2000) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).

"In assessing whether probable cause exists, 'courts must look to the

totality of the circumstances and view those circumstances . . . from the

standpoint of an objectively reasonable police officer.'" State v. Diaz, 470 N.J.

Super. 495, 529 (App. Div. 2022) (quoting State v. Gibson, 218 N.J. 277, 293

(2014)). "[C]ourts are to give weight to 'the officer's knowledge and experience'

as well as 'rational inferences that could be drawn from the facts objectively and

reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154

N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).

Probable cause, however, "cannot be based upon a mere hunch." State v.

Sansotta, 338 N.J. Super. 486, 491 (App. Div. 2001).

In State v. Irelan, 375 N.J. Super. 100, 106, 119 (App. Div. 2005), officers

conducted a traffic stop after observing defendant commit several traffic

violations and the ensuing "roadside investigation provided probable cause that

defendant was intoxicated." Specifically, based on the officers' observations

during the stop and defendant's performance on sobriety tests, it became evident

defendant "reasonably appeared intoxicated," was arrested for DWI. Id. at 119.

We held a motorist's intoxicated appearance, together with his recent driving of

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a vehicle, supported "a reasonable well-grounded suspicion that alcohol was

consumed in the vehicle, and thus the vehicle contained open containers of

alcohol," and determined the probable cause prong of the automobile exception

met. Ibid.

In Jones, a state trooper stopped a car for a motor vehicle infraction and

detected alcohol on the defendant's breath, who admitted drinking "a bottle of

Heineken." 326 N.J. Super. at 237-38. After a pat-down search of defendant

and his passengers yielded no weapons, the officer searched the car for open

containers of alcohol and seized large quantities of cocaine. Id. at 238-39.

In reversing the trial court's order denying defendant's suppression

motion, we held the "odor of alcohol the Trooper detected on Jones's breath,

together with his nervousness and admission concerning the consumption of one

beer, does not, when viewed with the other existing circumstances, establish a

well-grounded suspicion that either [defendant] or his passengers had open

containers of alcohol." Id. at 244. Rather, we concluded, "the Trooper's

suspicion that the occupants of the vehicle had open containers is at best a mere

hunch and, therefore, no better than a naked suspicion." Ibid. We noted,

however, had the trooper "observed open containers in plain view or any

outward signs such as spilled alcohol . . . a further search of the vehicle . . .

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would have been warranted," but the smell of alcohol and defendant's admission

he consumed one beer "may not, by itself, warrant a sobriety test, let alone a

search of the vehicle for open containers." Id. at 245. We concluded such a

search extended "beyond of the bound permitted and does not pass constitutional

muster." Ibid.

We disagree with defendant's argument that Irelan is either factually or

legally inapposite, and note Irelan has not been overturned and has remained

good law for nearly twenty years. Although we are not bound by our prior

decisions, see State v. Harrell, 475 N.J. Super. 545, 564 (App. Div. 2023), we

depart only in certain limited situations. See, e.g., State v. Rochat, 470 N.J.

Super. 392, 439 (App. Div. 2022) (giving "due consideration" to prior decision's

"carefully considered statements"); Gerszberg v. Jacuzzi Whirlpool Bath, 286

N.J. Super. 197, 204 (App. Div. 1995) (declining to readdress issue decided in

prior case which "has stood for twenty years without modification by rule or

subsequent case law"); see also Pressler & Verniero, Current N.J. Court Rules,

cmt. 3.3 on R. 1:36-3 (2024) (noting panels of the Appellate Division "have been

reluctant to interfere in long-standing, unchallenged holdings of their co-equal

panels, especially if doing so would unsettle years of established procedure").

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We are further satisfied defendant's reliance on Jones is misplaced. There,

we held the warrantless search of vehicle was improper as police did not have

probable cause defendant drove while intoxicated or that the vehicle contained

open containers of alcohol. Jones, 326 N.J. Super. at 244. We concluded

defendant's minor traffic violation and admission he drank a single beer

provided police with "at best a mere hunch" the vehicle contained open

containers of alcohol. Ibid.

Here, however, police were armed with significantly more facts, and

certainly more than a hunch, giving rise to probable cause to believe defendant

was under the influence of narcotics and that evidence of that use was in

defendant's vehicle. See Irelan, 375 N.J. Super. at 119. Indeed, Trooper

Radetich observed: defendant "stumble over his own feet," his "slow" and

"raspy" speech, "pinpoint" eyes, "white stuff" coming from defendant's mouth,

and a "fresh" injection mark. Defendant also failed the one-leg stand and walk-

and-turn field sobriety tests. It was evident to Trooper Radetich, based on his

observations, including defendant's "fresh" injection mark, defendant appeared

to be under the influence of drugs, had recently consumed a controlled

dangerous substance, and had recently driven his vehicle for an unknown period

of time. These facts amply supported Trooper Radetich's "reasonable well-

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grounded suspicion" defendant's vehicle contained evidence of drug use

consistent with Irelan, 375 N.J. Super. at 119.

V.

Finally, defendant argues even if probable cause did exist, the

circumstances leading to Trooper Radetich's conclusions did not come about

spontaneously and unforeseeably but rather resulted from "a concerted and

deliberate effort on the part of Radetich that unfolded over time." We are not

persuaded.

In his argument, defendant relies on Smart, in which a confidential

informant provided a detective with information concerning a known drug

dealer's vehicle. 253 N.J. at 161. The detective and another officer followed

defendant to a residence where police knew "multiple drug users lived." Ibid.

The officers surveilled the car for over an hour, during which he saw defendant

engage in what the officer believed to be a drug transaction. Ibid. Believing

they had reasonable, articulable suspicion to conduct an investigative stop,

police pulled the car over, but saw no sign of drugs. Id. at 161-62. Still

suspecting the car contained drugs, police called for "a canine, whose positive

drug 'hit' established probable cause." Ibid. Police immediately searched the

car, resulting in the seizure of drugs and weapons. Ibid.

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The trial court suppressed the evidence, finding police needed a warrant

to search the car because the circumstances giving rise to probable cause "were

not 'unforeseen and spontaneous,'" precluding application of the automobile

exception under Witt — a decision affirmed by this court, State v. Smart, 473

N.J. Super. 87 (App. Div. 2022), and the Supreme Court, Smart, 253 N.J. at 174.

The Court found the circumstances which ripened into probable cause could

"hardly be characterized as unforeseeable" and "were anything but

spontaneous." 253 N.J. at 172-73.

As to foreseeability, the Court noted the police, after a prolonged

surveillance, "anticipated and expected they would find drugs" in defendant's

car and "made the decision to conduct a canine sniff to transform their

expectations into probable cause to support a search." Id. at 173. The Court

found the canine sniff could not qualify as spontaneous because it "was just

another step in a multi-step effort to gain access to the vehicle to search for the

suspected drugs." Ibid.

In Irelan, discussed supra, we held the events leading to officers having

probable cause to believe defendant drove while intoxicated, and consumed

alcohol in the vehicle, were spontaneous and unforeseeable. 375 N.J. Super. at

119. There, we upheld the warrantless search of defendant's vehicle as police

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"had no advance information about the defendant[,] they encountered him by

chance while on patrol[,] . . . [and] it was not until after the stop and the

subsequent roadside investigation that they acquired probable cause that the

vehicle contained items of evidence they had the right to seize." Id. at 119.

We are convinced Smart does not warrant a different result. In that case,

as noted, police expected to find drugs in defendant's vehicle because they

received a tip about the vehicle being used in drug transactions and surveilled

defendant for an extended period of time, including at a residence associated

with drugs. As such, the canine alerting police to drugs in the vehicle was

neither unforeseeable nor spontaneous.

Here, while defendant's arrival at the police station was not spontaneous,

his arrival under the influence, and Trooper Radetich's observations indicating

defendant drove to the station in that condition, were spontaneous and

unforeseeable. We acknowledge Trooper Radetich suspected defendant was

possibly under the influence when he called defendant an hour or two before

defendant arrived at the station, but that suspicion was not the animating reason

he requested defendant come to the police station. We are satisfied the events

giving rise to probable cause to believe defendant drove while intoxicated, and

Trooper Radetich's belief there was evidence of drug use in defendant's vehicle,

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occurred spontaneously and unforeseeably, and were based on the Trooper's

developing investigation.

In light of our decision, we need not, and decline to address the procedural

or substantive propriety of the State's alternative argument, raised for the first

time on appeal, the search of defendant's vehicle was lawful as a search incident

to arrest.

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10481801. Public record. Not legal advice.