The search of the interior of the vehicle under the “Terry” stop and frisk exception to the warrant requirement is limited. The object of the search is weapons or other objects that could harm the police officer or others. Accordingly, when searching the interior passenger compartment of the vehicle, the police may only search those areas where a weapon may be placed or hidden. A limited protective search for hidden weapons under the seats, within seat cushions, in the glove compartment, under car mats, and other readily accessbile areas in the vehicle are justified. On the other hand, searches of the trunk or locked containers within the vehicle are not justified under this exception to the warrant requirement because these hidden weapons are not readily accessible to suspects.

The New Jersey Supreme Court adopted the Michigan v. Long analysis in State v. Lund, 119 N.J. 35 (1990). The protective search is judged by whether a reasonably prudent person would be warranted in the belief that his or her safety or that of others was in danger. The measure of reasonabless is held to an objective standard.

Search incident to a lawful arrest is another exception to the requirement that police obtain a warrant before executing a search. New Jersey law on this exception has been interpreted to provide New Jersey drivers with more protection under the state constitution than they would receive under the US Constitution.

In Chimel v. California, 395 U.S. 752 (1969), the US Supreme Court ruled that when police effect an arrest, they are entitled to conduct an immediate search of the person so arrested in order to remove any evidence that could be used to resist arrest, effect an escape, or cause injury to the arresting officers or others. The court also held that the object of the search incident to an arrest could include evidence: fruits and instrumentalities of crime that may be secreted on the arrestee’s person. The scope of the search was not limited by the Court to the person of the individual being arrested, but included the area within the immediate control of the person (“within the person’s wingspan”).

Twenty years after the Chimel decision, the Court created a bright line rule for searches incident to arrest in the context of a motor vehicle stop. In New York v. Belton, the US Supreme Court held that when a police officer effects a lawful arrest of the occupant of a motor vehicle, the officer may, incident to that arrest, search the passenger compartment of the vehicle. New York v. Belton, 453 U.S. 454 (1981). A motor vehicle may contain weapons which the arrestee may use to resist arrest or to injure police. The vehicle may also contain evidence that the arrestee may attempt to destroy or conceal. The police are permitted to search any closed containers within the passenger compartment to which the arrestee may have access. However, the Court was careful to exclude the trunk of the vehicle which may not be searched incident to arrest. Boxes, luggage, bags, and clothing are subject to search if they are within the passenger compartment.

The search of the vehicle should occur immediately after the arrest. It is acceptable that before the search is conducted, the defendant is secured in restraints and placed in a police car where they will not have access to evidence and cannot threaten the safety of the officers while they effectuate the valid search.

There are dangers police officers face when executing routine traffic stops. In Pennsylvania v. Mimms, the United States Supreme Court held that police may order persons out of a motor vehicle during a traffic stop and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous. Pennsylvania v. Mimms, 434 U.S. 106 (1977). The Court decided the grounds upon which the police could conduct a protective search of the passenger compartment of a motor vehicle in the landmark decision of Michigan v. Long, 463 U.S. 1032 (1983). The Court held that a police officer may conduct a limited search of the passenger compartment of a motor vehicle provided that he or she possesses a reasonable belief based on specific and articulable facts which reasonably warrant the officer believing that the suspect is dangerous and may gain access to weapons. Essentially, this is a Terry stop and frisk of a motor vehicle. The officers, under the Long decision, can conduct a frisk of a motor vehicle for weapons during a routine traffic stop if they have a reasonable suspicion based on specific articulable facts that the individuals in the automobile are dangerous.

In the New Jersey Supreme Court case of State v. Pierce, the Court limited the application of the Belton rule. State v. Pierce, 136 N.J. 184 (1994). The Court held that the Belton rule of permitting searches incident to a lawful arrest during a motor vehicle stop would not apply in New Jersey in those situations where the underlying reason for the arrest was a violation of the motor vehicle laws. Fearing that the statute could be used by police to effect arrests on the slightest pretext and use the opportunity to search vehicles under the Belton rule, the justices declared that searches under Belton shall not apply to warrantless arrests for motor vehicle offenses. Finally, in State v. Eckel, the New Jersey Supreme Court held that, under the New Jersey Constitution, Belton would no longer apply. State v. Eckel, 185 N.J. 523 (2006). With this decision, New Jersey police officers lost the option of searching a motor vehicle incident to the arrest of one of the vehicle’s occupants.

The New Jersey Supreme Court considered whether the Mimms rule applied to passengers in New Jersey as well in State v. Smith, 134 N.J. 599 (1994). The Court found that ordering a passenger out of a vehicle is different from ordering a driver to get out of the vehicle because the passenger has not engaged in the culpable conduct that resulted in the vehicle stop. The court found that an order to exit a vehicle during the course of a routine motor vehicle stop constitutes a greater intrusion on the passenger’s liberty than on the driver’s. Because the passenger has not normally engaged in an obvious violation of the law, he or she has a legitimate expectation that no further inconvenience will occur other than the delay of a lawful stop of a driver. Accordingly, the court recognized a distinction between the privacy expectations of passengers and drivers and found that the passenger’s privacy interest is greater than that of the driver. The Court ruled that in order for an officer to require a passenger to exit a motor vehicle during a lawful stop, the officer must be able to identify specific and articulable facts that would warrant heightened caution to justify ordering passengers out of a vehicle detained for a traffic stop. The officer needs to establish some facts considered in the totality of the circumstances that would create a heightened awareness of danger for the officer.

Central to the court’s analysis in State v. Smith, 134 N.J. 599 (1994), was the fact that normally a passenger will not have committed any motor vehicle violation. Of course, this may not always be the case. There are numerous violations that passengers can commit. For example, failure to wear a seatbelt while seated in the front of a motor vehicle constitutes a violation of New Jersey law. In a similar manner, passengers may be liable under the motor vehicle laws when they, as licensed drivers, permit the operation of a motor vehicle by a person under the age of 17 with an examination permit. Passengers can also be liable for permitting intoxicated drivers to operate a motor vehicle that is either owned or within the custody or control of the passenger. In fact, a passenger who permits his or her motor vehicle to be operated without liability insurance is strictly liable under the state’s compulsory insurance laws.

In those cases in which the passenger has actually committed a motor vehicle offense themselves, it seems that the investigating officer has the power to lawfully order them to exit the vehicle under the Mimms analysis. This was the holding in State v. Legette. This was decided three months after the New Jersey Supreme Court’s decision in Smith, and the court decided that the police could order a passenger to exit a vehicle where he was about to receive a ticket for failure to wear a seatbelt. State v. Legette, 274 N.J. Super 278 (1994). Under the court’s reasoning in Legette, a police officer may order passengers to exit a vehicle whenever the passenger has independently violated a provision of the motor vehicle or criminal laws.

There is a distinction in New Jersey between orders by a law enforcement officer for operators and passengers of a vehicle to exit the vehicle during a motor vehicle stop. With respect to operators of a motor vehicle, New Jersey follows the federal position that police are free to use their discretion to order a driver from the vehicle during the course of a motor vehicle stop. This comes from the federal case of Pennsylvania v. Mimms, 434 U.S. 106 (1977). Critical to this United States Supreme Court decision is the concerns for issues of officer safety during traffic stops. Weighing the potential for death or bodily injury to police during traffic stops against the inconvenience to motorists, the court found that the intrusion can only be described as de minimis (minimal). Essentially, this decision creates a bright line rule that police may require drivers to exit their vehicles during a motor vehicle stop without any justification.

With respect to drivers, the New Jersey Supreme Court has found this decision to be consistent with the New Jersey Constitution. In State v. Smith, the court that that the Mimms test is constitutional under the New Jersey Constitution. State v. Smith, 134 N.J. 599 (1994). The Court adopted the reasoning of the USSC and found that, in contrast to the minimal intrustion on a person’s privacy, a police officer’s safety is greatly enhanced when an officer can order a driver out of the car.

The State is required to prove two elements during a hearing on a motion to suppress evidence, where the issue is one of consent. First, the State must prove by clear and convincing testimony that consent was freely, knowingly, and voluntarily given. This evidence should include proof that the defendant knew that he or she had the right to refuse to grant consent for the search. This can be shown through a written consent to search form, video evidence, or direct testimony from the police officer. The proofs only require knowledge to refuse consent on the part of the defendant, not that the police actually informed the defendant of this important right.

The second element of proof in the motor vehicle context is the requirement that the police justify the reason they sought consent to search in the first place. The request must be based upon a reasonable and articulable suspicion that evidence of a crime or contraband could be found within the motor vehicle. This can be proven through direct or circumstantial evidence. The conclusions made by the officer at the time of the request for consent must be based on a totality of the circumstances. The information available to the officer and the rational inferences to which they create must lead the officer to suspect that criminal evidence exists in the vehicle. Absent clear proofs on both of these issues, the incriminating evidence that was obtained through a consent search must be suppressed.

New Jersey law differs significantly from federal law on the issue of motor vehicle searches undertaken by consent of the driver. Article 1, paragraph 7 of the New Jersey Constitution provides more protection to individuals than the comparable provisions of the 4th amendment to the US Constitution.

In Schneckloth v. Bustamonte, the US Supreme Court ruled that when a subject of a search is not in custody and the prosecutions seeks to justify the search on the basis of the subject’s consent, the 4th and 14th Amendments to the US Constitution require that the State demonstrate that the consent was voluntarily given. The State must also show that the consent was not the product of threats, coercion, or duress. While the subject’s knowledge of his or her right to refuse consent is a factor that the court may consider on the issue of voluntariness, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.

This is not the law in New Jersey. Under our state constitution, the prosecution must prove not only the voluntary nature of the consent, but also that the defendant knew of his or her right to refuse to give consent to the search.

Furthermore, in the motor vehicle context, there is an additional requirement that must be met under New Jersey law. In order to seek the consent of a subject to conduct a search of a motor vehicle during a routine traffic stop, the law enforcement officer must have at least an articulable suspicion that evidence of a crime or a contraband may be found in the vehicle. This additional requirement in the motor vehicle context is also a product of an appellate decision interpreting Article I, paragraph 7 of the New Jersey Constitution to provide greater protection against unreasonable searches and seizures than the 4th amendment provides.