The opinion of the court was delivered by: Verniero, J.
On appeal from the Superior Court, Appellate Division.
This appeal involves the question whether the "automobile exception" to the warrant requirement of the New Jersey Constitution requires a finding of exigent circumstances. That question has become significant because the United States Supreme Court has held that exigent circumstances are not required under the Fourth Amendment to the United States Constitution, concluding that probable cause that a vehicle contains contraband is itself sufficient justification to conduct the search without a warrant. Pennsylvania v. Labron, 518 U.S. 938, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996). We decline to reach a similar conclusion under the New Jersey Constitution. Instead, we conclude that the automobile exception under New Jersey law requires both probable cause and a finding of exigent circumstances to sustain a warrantless search of a vehicle.
Based on that conclusion and the facts of the present case, we hold that the search of the automobile was valid because both probable cause and exigent circumstances existed. Although the police officers searched the vehicle after they had already taken defendant into custody, the vehicle was still readily mobile and third persons could have removed it from the area under surveillance or removed or destroyed its contents. Accordingly, we reverse the grant of defendant's motion to suppress and remand for trial.
On May 7, 1997, Officer Timothy Harmon of the Jersey City Police Department conducted surveillance of a housing complex located on Duncan Avenue in an area known for drug-trafficking. Two weeks prior to that date, the police had received information from a reliable, confidential informant that defendant was selling drugs in that Duncan Avenue location, storing the drugs in a gray Ford Escort. Officer Harmon alone conducted the surveillance of the specific location; perimeter teams of other officers were in the area in the event their assistance was needed.
During his surveillance, Officer Harmon observed defendant in a parking lot working on what appeared to be the radio speakers within the Ford Escort. An alleged buyer approached defendant and gave him money. Defendant walked to a nearby white Hyundai, took a plastic bag from the Hyundai's passenger side, and gave the bag to the alleged buyer. The officer stated that the "bag was consistent with keeping of [controlled dangerous substances]." Based on his first-hand observations, experience with narcotics arrests in the area, and the informant's tip, the officer concluded that defendant was engaged in a drug transaction.
After that first buyer walked away, a second man (unnamed in the record) approached and appeared to be talking to defendant at the Escort. Approximately one hour later, a third man, Bryan Miles, approached. The officer testified that Miles "was known to [the police] from previous arrests." Defendant, Miles, and the unnamed man walked over to the Hyundai. Defendant handed a white object to the unnamed man, who then left. Defendant retrieved another plastic bag from the Hyundai and placed it under the passenger seat of the Escort. Defendant and Miles then drove away in the Hyundai.
Officer Harmon notified the other officers, who followed defendant and pulled the Hyundai over. The officers informed defendant that there was an unrelated, outstanding warrant for his arrest. At the same time, the officers removed Miles from the car and detained him for an unspecified time. The officers also questioned defendant about his knowledge of the gray Ford Escort. Defendant denied any knowledge of the Escort. The officers arrested defendant, searched him, and discovered the keys to the Escort. Defendant continued to deny knowledge of that car.
Officer Harmon continued surveillance of the Escort. After arresting defendant, the other officers returned to the scene with the keys found on defendant. They searched the car and recovered illegal drugs. Officer Harmon did not participate in the search of the Escort because, he stated, "[n]ormally if you have a surveillance spot, you don't . . . give up your location."
Defendant was indicted for possession of cocaine and heroin pursuant to N.J.S.A. 2C:35-10a(1), possession of cocaine, heroin, and marijuana with intent to distribute pursuant to N.J.S.A. 2C:35-5a(1), -5b(3), -5b(12), and possession of cocaine, heroin, and marijuana with intent to distribute within 1000 feet of school property pursuant to N.J.S.A. 2C:35-7.
The trial court granted defendant's motion to suppress all evidence seized from the search of the Ford Escort. On reconsideration, the trial court affirmed its ruling. The court concluded that the automobile exception did not apply because the police had no exigent circumstances justifying a search without a warrant. The court believed that the Escort was not "readily mobile" because the police had arrested defendant and had him in custody, the police had defendant's keys to the Escort, and the car was under police surveillance until the time of the search.
In an unpublished decision, the Appellate Division affirmed substantially for the same reasons expressed by the trial court. The Appellate Division added that the police received no specific information that any other person might attempt to take the vehicle or any of its contents; thus, the panel found an absence of exigent circumstances. We granted both the State's motion for leave to appeal, 161 N.J. 332 (1999), and the Attorney General's motion for leave to appear as amicus curiae (in this opinion, we refer to the State and Attorney General collectively as the "State"). We now reverse.
Article 1, paragraph 7 of the New Jersey Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.
A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement. State v. Alston, 88 N.J. 211, 230 (1981). "The requirement that a search warrant be obtained before evidence may be seized is not lightly to be dispensed with, and the burden is on the State, as the party seeking to validate a warrantless search, to bring it within one of those recognized exceptions." Ibid.
In this case, the State argues that the warrantless search of the Escort was valid under the automobile exception. Defendant argues that there were no exigent circumstances to permit a warrantless search. In defining the scope of the automobile ...