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New Jersey Criminal Lawyer - Appellate Opinions
State v. Dunlap, 185 N.J.
543 (2006)
In addition,
we reject the State's argument that “it would have been unduly
burdensome and unreasonably restrictive to require the police to
post a guard and repair to the courthouse for a warrant,” There were
at least ten officers present on the evening in question and even
assuming that some were needed for other duties in connection with
defendant's arrest and the on-going investigation, the State did not
establish that an insufficient number
**1283
would have been left to guard the car. To say that the late hour
made access to a judge difficult or unpracticable, is to ignore the
procedures in place for emergent duty judges in every vicinage and
the existence, since 1984, of the telephonic warrant procedure.
R. 3:5-3(b). Indeed, it is not without significance that the
investigators here had time to call the prosecutor's office at about
10:00 pm and obtain verbal authorization for the consensual
recording of defendant's conversation with Tiaa.
One final note. Nothing in this opinion should be viewed as a
retrenchment from the well-established principles governing the
automobile exception to the warrant requirement. The standards
remain the same: probable cause and exigent circumstances, each of
which to be determined on a case-by-case basis. Here, the unique
facts, particularly the presence of ten officers, fully justified
the Appellate Division's conclusion that exigency was absent.
Different facts, such as a roadside stop effectuated by only one or
two officers, would likely have changed the calculus. Police safety
and the preservation of evidence remain the preeminent determinants
of exigency.
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