Another Opinion

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.