January 23, 2011

Officer could use MDT for random plate look up State v. COVIELLO,

Officer could use MDT for random plate look up State v. COVIELLO,

Before Judges Carchman and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-035.


DOCKET NO. A-3904-09T1





Following the Law Division's granting of defendant Annette Coviello's motion to suppress a motor vehicle stop reversing the decision of the Boonton Municipal Court, we granted the State's motion for leave to appeal. We reverse and remand to the Law Division for the restatement of defendant's plea of guilty[1] to driving while intoxicated, N.J.S.A. 39:4-50, and with refusal to submit to a breath test, N.J.S.A. 39:4-50.2.

These are the facts, which are not in significant dispute. On May 3, 2009, at approximately 3:00 a.m., Sergeant Richard Vnencak, a thirteen-year veteran of the Boonton Police Department, was on routine patrol in a police cruiser at the intersection of Spruce and Boonton Avenue. As he made a right hand turn onto Boonton Avenue, he observed defendant's vehicle, a 2007 Jeep wagon, drive past him. During a random plate lookup on his Mobile Data Terminal (MDT) with his Info Cop, defendant's vehicle returned a "hit" for an open warrant on the vehicle's owner. "Info Cop" is a database permitting access to the records of the New Jersey Division of Motor Vehicles (DMV).

As it was dark, Vnencak was not able to identify the vehicle's occupants. Relying on the "hit," Vnencak activated his overhead lights and stopped defendant's motor vehicle. He approached the vehicle and identified the driver as the registered owner of the vehicle. Defendant matched the person identified on the open warrant. When speaking to defendant, Vnencak detected an odor of alcoholic beverage on defendant's breath. He then asked her to exit her vehicle to perform field sobriety tests. Following the test and further questions, defendant was arrested for driving while intoxicated and for refusal to submit to a breath test. Defendant challenged the propriety of the stop. While unsuccessful in the municipal court, at the Law Division, the judge concluded that the stop was unlawful and remanded the case to the municipal court. We granted the State's motion for leave to appeal.

On appeal, the State asserts that the stop was lawful. Specifically, the State asserts that its use of the MDT system was appropriate, and the "hit" received on the system formed the requisite reasonable, articulable suspicion for a motor vehicle stop.

The police may both follow a car without any prior suspicion of wrongdoing, State v. Hughes, 296 N.J. Super. 291, 296 (App. Div. 1997), certif. denied, 149 N.J. 410 (1997), as well as secure a computer check on a license plate without any prior suspicion. State v. Pitcher, 379 N.J. Super. 308, 314-15 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). Record checks are permissible even when conducted randomly without any prior reasonable suspicion of a violation of the motor vehicle laws. State v. Segars, 172 N.J. 481, 491-92 (2002).

The constitutional standard is satisfied by "balancing the need for the stop against the invasion it entails." Pitcher, supra, 379 N.J. Super. at 314. Police may stop a vehicle when the DMV database shows that the owner's license is suspended. State v. Donis, 157 N.J. 44, 58 (1998). A "hit" obtained on a mobile computer linked to the DMV database meets this standard. Id.

In Donis, the New Jersey Supreme Court held that to balance the need to protect law enforcement officers in the fulfillment of their duties with the privacy of motorists, MDTs should be programmed to provide for a two-step process.

In the first step, the initial random license plate look-up would display information regarding only the registration status of the vehicle, the license status of the registered owner, and whether the vehicle has been reported stolen. The registered owner's personal information would not be displayed. If the original inquiry disclosed a basis for further police action, then the police officer would proceed to the second step, which would allow access to the "personal information" of the registered owner, including name, address, social security number, and if available, criminal record.

[(Donis, supra, 157 N.J. at 55).]

Defendant makes two arguments. Defendant suggests that a warrant is "personal information," which should not be revealed until step two, and an officer should not have access to this information unless step one reveals something improper about the vehicle. Defendant asserts that it was improper for Officer Vnencak's MDT to produce an initial "hit" for a warrant.

This interpretation is without merit. Donis prevents an officer from obtaining a vehicle owner's personal information unless the officer reasonably suspects wrongdoing. The privacy considerations underlying Donis are not threatened here. An outstanding warrant for the registered owner of a car is precisely the type of information without more that warrants further police action.

Defendant relies on our decision in State v. Parks, 288 N.J. Super. 407 (App. Div. 1996). In Parks, we held that for an officer to stop a vehicle, more information is needed than a report from the MDT that the vehicle's owner does not have a valid license. Rather, the officer must have additional evidence of defendant's identity as the driver of the vehicle at that particular time. Defendant argues that Officer Vnencak lacked any articulable reason as to support the stop because he did not compare the physical characteristics of the driver revealed by the MDT to those of the driver prior to stopping the vehicle.

We reject defendant's reliance on Parks. The record is devoid of any evidence of information ascertained by the Sergeant after receiving the "hit" on defendant's vehicle. However, we deem the lack of such information to be without moment.

The stop took place at 3:00 a.m. during the middle of the night. It would be unlikely that the officer could identify the driver as the owner of the vehicle absent a stop. Common sense requires that a "hit" is sufficient to permit the officer to stop the vehicle, especially where the attendant circumstances preclude any meaningful identification.

We find that Sergeant Vnencak had sufficient reasonable suspicion to believe that the owner was the driver or that a stop would lead to the owner's whereabouts so as to permit execution of the warrant. See Donis, supra, 157 N.J. at 56.

We reverse the order suppressing the stop. The matter is remanded to the Law Division for appropriate action consistent with this opinion. We do not retain jurisdiction.

[1] Defendant had previously entered a conditional plea following the denial of her motion to suppress in the municipal court.

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