In March, the New Jersey Supreme Court reaffirmed that the New Jersey Constitution provides more protection against unreasonable car searches than the U.S. Constitution. The case, State v. Smart, involved a warrantless search of Kyle Smart’s car following a weeks-long investigation into suspected drug dealing, culminating in an investigatory car stop. The question was whether that warrantless search was legal under Article I, Paragraph 7 of the New Jersey Constitution. The court—rejecting about a century of federal Fourth Amendment precedent—held that the answer was no.

No, because it’s “well known that our State Constitution ‘provides greater protection against unreasonable searches and seizures than the Fourth Amendment.’”[1] No, because those greater protections “exist for automobile searches, too.”[2] And no, because while mere probable cause may be enough to justify warrantless car searches under Fourth Amendment precedent, “there are significant differences” in how the analysis works under Article I, Paragraph 7.[3] Namely: Probable cause justifying a warrantless search must stem from “unforeseeable and spontaneous” circumstances—not a weeks-long investigation designed to target people while they’re driving.[4]

New Jersey is one of at least nine states whose high courts have rejected the “automobile exception” to the Fourth Amendment’s warrant requirement in favor of a more protective state constitutional rule.[5] Smart keeps New Jersey on the leading edge of that trend. This article will cover the facts of the case, how New Jersey’s standard differs from the federal rule, and how the court applied that standard to reject the warrantless search of Smart’s car.

Factual Background

New Jersey police wanted to search Kyle Smart’s car long before they pulled him over in August 2021. One month prior, a confidential informant had described a drug dealer whose appearance and car matched Smart’s. Suspecting Smart had used his car to sell drugs in the past, the officers started tailing him. They followed him to a restaurant, then to a bank, then to another person’s home, where they saw Smart engage in what looked like a drug deal.

Finally, after a weeks-long investigation and hours of tailing him, the officers decided to conduct an “investigative stop.”[6] They pulled Smart over, issued a Miranda warning, questioned him, asked for consent to search his car—which Smart refused—and then called a drug dog to the scene “to transform their expectations into probable cause to support a search.”[7]

The dog alerted, which the officers treated as a green light to search the car without a warrant. They found drug paraphernalia, weapons, and ammunition, and they charged Smart with various crimes. He moved to suppress the evidence recovered from the search, and the trial court granted his motion; the appellate court affirmed. The question for the New Jersey Supreme Court, then, was whether the suppression was proper under Article I, Paragraph 7 of the New Jersey Constitution.[8]

New Jersey Rejects the Federal Standard

If Smart had raised a Fourth Amendment defense, he would have lost. Almost 100 years ago, in Carroll v. United States, the U.S. Supreme Court held that police don’t need a warrant to search your car during a traffic stop when they have probable cause to think it “contains that which by law is subject to seizure and destruction.”[9] The idea was that, while police need to get a warrant when it’s “reasonably practicable,” it’s not reasonably practicable during traffic stops because a “vehicle can be quickly moved” when an officer leaves the scene to get a warrant.[10]

But Smart did not raise a Fourth Amendment defense. He challenged the search under Article I, Paragraph 7 of the New Jersey Constitution, which has similar text but which the New Jersey Supreme Court has repeatedly held “provides greater protection against unreasonable searches,” including “automobile searches.”[11] Unlike the federal rule, under which probable cause is enough to get around the warrant requirement,[12] Article I, Paragraph 7 requires that the cause arise from “unforeseeable and spontaneous” circumstances.[13] Put another way, police can’t game the system by waiting until people enter their cars to get around the warrant requirement.

While not a total rejection of the federal automobile exception—New Jersey’s standard still allows warrantless searches, after all—it bars police from strategically exploiting the federal rule.

Application of New Jersey’s Standard

Applying its “enhanced” test, the New Jersey Supreme Court unanimously rejected the warrantless search of Smart’s car.[14] Far from the sort of surprise probable cause that the New Jersey Constitution requires, “[t]he circumstances giving rise to probable cause included a sequence of interconnected events” that were “deliberate, orchestrated, and wholly connected with the reason for the subsequent seizure of the evidence.”[15] Nor did the dog sniff “exist in a vacuum”; rather, it “was just another step in a multi-step effort to gain access to the vehicle to search for the suspected drugs.”[16] Smart experienced the very sort of premeditated warrantless search of his vehicle that Article I, Paragraph 7 forbids.

It will be interesting to see if other state courts adopt similar or even more protective standards under their own constitutions in the years to come.

Joshua Windham is an attorney at the Institute for Justice and IJ’s Elfie Gallun Fellow in Freedom & the Constitution.

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[1] State v. Smart, 289 A.3d 469, 474 (N.J. 2023) (quoting State v. Carter, 255 A.3d 1139, 1148 (N.J. 2021)).

[2] Smart, 289 A.3d at 475 (collecting cases).

[3] Id.

[4] Id. at 478.

[5] See State v. McCarthy, 501 P.3d 478 (Or. 2021); Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020); State v. Cora, 167 A.3d 633 (N.H. 2017); State v. Ruggles, 702 P.2d 170 (Cal. 1985); State v. Tibbles, 236 P.3d 885 (Wash. 2010); State v. Elison, 14 P.3d 456 (Mont. 2000); State v. Bauder, 924 A.2d 38 (Vt. 2007); State v. Gomez, 932 P.2d 1 (N.M. 1997).

[6] Smart, 289 A.3d at 472.

[7] Id. at 473, 479.

[8] Id. at 473.

[9] Carroll v. United States, 267 U.S. 132, 149, 155–56 (1925).

[10] Id. at 153, 155–56. Today, notably, a majority of states—including New Jersey—allow police to obtain warrants remotely (by phone or over the internet) in a matter of “minutes,” which at least raises questions about Carroll’s validity today. Missouri v. McNeely, 569 U.S. 141, 154 n.4 (2013) (citing, in part, N.J. Rule Crim. Proc. 3:5-3); id. at 173 (Roberts, C.J., joined by Breyer and Alito, JJ., concurring in part and dissenting in part) (“Judges have been known to issue [remote] warrants in as little as five minutes.”).

[11] Smart, 289 A.3d at 474–75 (quoting Carter, 255 A.3d at 1148).

[12] Cf. Smart, 289 A.3d at 477 (“[P]robable cause to believe a car contains contraband ‘alone satisfies the automobile exception to the Fourth Amendment’s warrant requirement.’” (quoting Maryland v. Dyson, 527 U.S. 465, 467 (1999)).

[13] Id. at 478 (citing State v. Witt, 126 A.3d 850, 872 (N.J. 2015)).

[14] Id. at 478–79.

[15] Id. at 479.

[16] Id.

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