(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
State v. Heidi Gordon (A-134-97)
Argued April 27, 1998 -- Decided December 10, 1998
GARIBALDI, J., writing for the Court.
The issue in these appeals is the constitutionality of a law enforcement officer's random check of a motor
vehicle's license plate number using a mobile data terminal (MDT).
An MDT consists of a screen and keypad that are linked to the computerized databases of the New Jersey
Division of Motor Vehicles (DMV). It is an inquiry-only device. An officer is unable to add, change, or delete any
information displayed on the pre-formatted screens.
When an officer enters a vehicle's license plate number, the screen shows registration information about the
vehicle, including whether it has been reported stolen, and information about the registrant, including address and
date of birth. Other screens display additional details about the registrant, including his or her social security
number; driver's license number; whether there are any points accrued against the license; and whether the license
has been revoked or suspended.
The essential facts in these appeals are undisputed. Police officers randomly entered the license plate
numbers of Donis's and Gordon's vehicles, and discovered that their driving privileges had been suspended. Donis
and Gordon challenged the officer's suspicionless access of the DMV information as unconstitutional under Article I,
paragraph 7 of the New Jersey Constitution. One trial court found that there was no expectation of privacy with
respect to the information. The other found that the intrusion satisfied the reasonableness standard for searches and
seizures.
The Appellate Division consolidated the appeals and affirmed in a per curiam opinion. It held that there
was no unconstitutional intrusion because the license plates are openly displayed and the records accessed by the
MDT are public. The Supreme Court granted certification.
HELD: Law enforcement officers have the right to randomly use MDTs to determine from a motorist's license plate
the status of the vehicle and of the registered owner's driver's license. If that inquiry discloses a basis for further
police action, then the officer may access personal information about the registered owner.
1. Every operator of a motor vehicle must expect that the State, in maintaining highway safety, will intrude to some
extent on the operator's privacy. The contents of the DMV records are public records under the Right to Know Law,
N.J.S.A. 47:1A-1 through 4. In 1997, however, the Legislature enacted N.J.S.A. 39:2-3.4, which prohibits the
disclosure of personal information obtained by the DMV. The statute defines personal information to include name,
address, and social security number, but does not include the driver's status or history of violations. The statute has
an exception that permits disclosure to a law enforcement agency "in carrying out its functions." (pp. 9-13)
2. The use of MDTs by police officers cannot be limited only to those instances when they actually witness a
violation of motor vehicle laws. The very purpose of the law requiring the display of a license plate is to identify the
owner of a car should the need arise. To effectuate that purpose, police officers randomly using MDTs should have
the right to determine from a license plate the status of the vehicle and the driving status of the registered owner
(whether the car is registered or stolen, and whether the registered owner is licensed). (pp. 13-15)
3. To best balance the State's goals of maintaining highway safety and protecting motorists from unnecessary
disclosure of personal information, the data displays of the MDTs should be reprogrammed 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
registered owner's name, address, social security number, and criminal record. (pp. 15-16)
4. The two-step process would not preclude an officer from using the inquiry screen to obtain personal information,
and the proper use of MDTs will depend on the officer's discretion. It is the specific officer, however, and not the
use of the MDT, that poses a danger of improper targeting. The Attorney General therefore should promulgate
guidelines that establish disciplinary measures that will be imposed on any law enforcement officer for improperly
using the MDT. Such guidelines should substantially lessen any concerns about potential abuses. Police
departments are not prohibited from imposing more restrictions on the random use of MDTs than are imposed in this
opinion. (pp. 16-18)
5. The time required to modify MDTs used by the numerous law enforcement agencies to implement the two-step
process should be completed by June 1, 1999. Until that process is complete, however, law enforcement agencies
throughout the State should be permitted to randomly use MDTs for valid law enforcement reasons. The Attorney
General should caution law enforcement agencies against the indiscriminate use of MDTs during the interim period.
(p. 20)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, concurring, agrees that the judgment should be affirmed. He believes, however, that
the Supreme Court would better serve the public interest and the interest of law enforcement if it held
unconditionally that the random and suspicionless use of MDTs by police officers to obtain personal information is
unauthorized.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, and COLEMAN join
in JUSTICE GARIBALDI's opinion. JUSTICE STEIN has filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
134 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURO I. DONIS,
Defendant-Appellant.
_____________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HEIDI M. GORDON,
Defendant-Appellant.
Argued April 27, 1998 -- Decided December 10, 1998
On certification to the Superior Court,
Appellate Division.
Eric R. Neisser argued the cause for
appellants (Roger C. Martindell, William A.
Slover and Eric R. Neisser, attorneys).
Charles M. Ouslander, Assistant Prosecutor,
argued the cause for respondent (Daniel G.
Giaquinto, Mercer County Prosecutor,
attorney).
Debra A. Owens, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Peter Verniero,
Attorney General, attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
The issue in these appeals is the constitutionality of a law
enforcement officer's random check of a motor vehicle's license
plate number using a mobile data terminal.
A.
When an officer enters a vehicle's license plate number, the initial "DMV plate" screen shows the expiration date of the registration for that vehicle; the status of the vehicle, including whether it has been reported stolen; the registrant's name, address, date of birth, and driver's license number; the year, make, model, license plate number, and color of the vehicle; the vehicle identification number; the number of owners of the registered vehicle; the maximum number of passengers for a passenger vehicle; the gross weight for a commercial vehicle; and the length of the registered vehicle if it is a boat.
When an officer accesses a DMV plate screen, the MDT then automatically runs a search of the registrant's name and displays the results on the "DMV name" screen. The DMV name screen shows the registrant's name and the number of names that match that search name; the registrant's driver's license number and date of birth; a code for the registrant's eye color; a code for whether the license or registration is suspended; whether the license is a photo or non-photo license; the licensee's address, social security number, date of birth, weight, and height; the term of the license; the license expiration date; the number of points accrued against the license; and the number of endorsements and restrictions on the license.
An officer with a driver's license number also can access the "DMV DL" screen. That screen shows the license expiration date; the driver's license number; the number of points accrued against the license; a code for whether the license or registration is suspended; the licensee's name, address, date of birth, sex, eye color code, height, weight code, and social security number; whether the license is a photo or a non-photo license; the term of the license; the number of endorsements and restrictions on the license; whether the endorsements and restrictions are for a vehicle or a boat; and the vehicle class code. As is apparent, much of the information retrieved from the "DMV DL" screen is included in the previously accessed screens.
In addition to using the license plate number, an officer can also enter the vehicle identification number to determine whether state or federal records indicate that the car has been reported stolen. By entering the licensee's name, an officer can further learn whether that individual is wanted by state or federal authorities. Currently, however, MDTs do not have access to the criminal history record information of the National Crime Information Center (NCIC) or the State Crime Information Center (SCIC). Furthermore, at no time does the MDT provide any reference to the registrant's race.
Prior to the installation of MDT terminals in patrol cars, law enforcement officers had access to the same information as is available from the MDT. Access to that information, however, was provided by the dispatcher over police-band radio rather than in vehicle terminals.
In both of these cases, police officers randomly entered the license plate numbers of petitioners' cars and accessed their DMV records, discovering that their driving privileges had been suspended. Use of the MDT by each officer was not governed by any manuals or policy directives and there was no supervision or recordkeeping involved. Petitioners challenge the officers' suspicionless access of that information as violative of Article I, paragraph 7 of the New Jersey Constitution.
The essential facts in both cases are undisputed. At approximately 9:28 p.m. on January 24, 1994, Sergeant Kenneth Hawthorne, a West Windsor police officer, was on routine patrol in a marked police car equipped with a MDT. Sergeant Hawthorne was driving northbound on U.S. Route 1 behind a 1986 Subaru, driven by petitioner, Mauro Donis. While traveling behind Donis, the officer entered the vehicle's license plate number. Although Sergeant Hawthorne observed no criminal activity and no driving or equipment violation by Donis, he testified that he punched in the car's license plate number because of his proximity to the vehicle and the opportunity to stop the car if information appeared that would warrant such a stop. In fact, the MDT search revealed that the Subaru belonged to Donis and that his driver's license had been suspended. The MDT also provided Donis's address, birth date, social security number, sex, eye color, weight, and height.
While awaiting the MDT results, Sergeant Hawthorne observed that the driver of the Subaru was a male. He also noticed that the driver due to his low position in the driver's seat was relatively short in stature. The MDT search provided the information that the car's owner was male and 5'8" in height. Based on his observations of the driver and the results of the MDT inquiry, Hawthorne stopped the car. Donis identified himself to the officer and stated that he owned the car. He also admitted that the car was not insured. Sergeant Hawthorne then issued two summonses: one for driving with a suspended license, contrary to N.J.S.A. 39:3-40, and one for driving without liability insurance, contrary to N.J.S.A. 39:6B-2.
Donis pleaded guilty to both charges, conditioned on the outcome of his motion to suppress the data that Hawthorne retrieved from the MDT. The municipal court sentenced Donis, but stayed the sentence pending the outcome of the suppression hearing. The motion was denied and Donis appealed. The Law Division conducted a de novo hearing and affirmed the denial of Donis's suppression motion. The court found that, as a matter of law, there is no expectation of privacy with respect to a license plate and, thus, an officer may look up a license plate "for no reason at all." Again, Donis appealed. The Appellate Division granted the State's motion for a temporary remand to establish an evidentiary record and retained jurisdiction. When the case returned to the Appellate Division, the court consolidated Donis's appeal with that of Heidi Gordon.See footnote 11
Gordon moved to suppress the data obtained by Officer Giordano with the MDT. The municipal court denied Gordon's motion, holding that the intrusion by the officer satisfied the "reasonableness standard" for searches and seizures. Like Donis, Gordon entered a guilty plea to the charges, conditioned on her appeal of the denial of her suppression motion. After sentencing Gordon, the court stayed the license suspension pending the appeal. Eleven months after affirming the denial of Donis's motion to suppress, the Law Division conducted a de novo hearing and affirmed the denial of Gordon's suppression motion. The court reiterated that there is no expectation of privacy in one's license plate. Moreover, the court held, the MDT data, in combination with the officer's observations of Gordon, created a reasonable, articulable suspicion that justified the subsequent stop. Gordon appealed.
We granted certification, 152 N.J. 11, and now affirm.
Petitioners and the State disagree on whether the police officers' random use of the MDT to access their DMV registration and license records violates Article I, paragraph 7 of the New Jersey Constitution. The petitioners assert that random use of the MDT violates the State Constitution. Underlying Article I, paragraph 7 "is the premise that there is a zone of privacy wherein all individuals expect that what they say or do will be protected from unreasonable government intrusion." State v. Myrick, 282 N.J. Super. 285, 291-92 (Law Div. 1995). The State alleges that the New Jersey Constitution "requires only that an expectation of privacy be reasonable," State v. Hempele, 120 N.J. 182, 200 (1990), and that petitioners had no reasonable expectation of privacy in their license plates and the registration and license information accessed by the MDT.
Like the United States Supreme Court in Delaware v. Prouse, 440 U.S. 648, 658, 99 S. Ct. 1391, 1398, 59 L. Ed.2d 660, 670 (1979), New Jersey courts have recognized that "[t]he State has a vital and compelling interest in maintaining highway safety by ensuring that only qualified drivers operate motor vehicles and that motor vehicles are in a safe condition." State v. Kadelak, 280 N.J. Super. 349, 360 (App. Div.), certif. denied, 141 N.J. 98 (1995). Because of the State's extensive regulation of its highways and thoroughfares, "[e]very operator of a motor vehicle must expect that the State, in enforcing its regulations, will intrude to some extent upon that operator's privacy." New York v. Class, 475 U.S. 106, 113, 106 S. Ct. 960, 965, 89 L. Ed. 81, 90 (1986).
To maintain highway safety, the State Legislature has authorized the Director of the Division of Motor Vehicles to "[c]ollect such data with respect to the proper restrictions to be placed upon motor vehicles and their use upon the public roads, turnpikes and thoroughfares as shall seem for the public good." N.J.S.A. 39:2-3(c). Such requested information includes the name, address, and social security number of a motorist. The purpose of collecting the registration information "is to assist law enforcement officers in locating the owners of stolen cars and to provide [law enforcement officers] with more complete motorist information." Assembly Committee, Governor's Reconsideration and Recommendation Statement for Assembly Bill Nos. 1845 and 2448 (1989), reprinted in N.J.S.A. 39:3-4.
In New Jersey, the Right to Know Law, N.J.S.A. 47:1A-1 to 4, provides citizens of this State with the right to inspect public records, which include any record "required by law to be made, maintained or kept on file by any board, body, agency, department, commission or official of the State." N.J.S.A. 47:1A-2. Furthermore, N.J.A.C. 13:18-11.3(a) provides that "all records which are required by law to be made, maintained, or kept on file by the Division of Motor Vehicles shall be considered public records." Although the computerized database of the DMV is not a public record itself, N.J.A.C. 13:18-11.3(c), its contents are contained within the public records maintained by the DMV. The status of DMV records as public records was noted by the Appellate Division in Parks, supra, 288 N.J. Super. at 410.
Prior to August 1997, citizens of New Jersey had the unqualified right to access the DMV's public records, provided that the citizen "demonstrate[d] to the satisfaction of the Director of the [DMV] . . . that he or she ha[d] a legitimate beneficial interest in the requested record." N.J.A.C. 13:18 11.3(d). In 1997, however, the New Jersey Legislature enacted N.J.S.A. 39:2-3.3 (Section 3.3) and N.J.S.A. 39:2-3.4 (Section 3.4) to protect "the safety of citizens of this state" and to protect "victims of sexual assault or domestic violence [who now] are assured that they have greater protection from those who would harm or have harmed them." Governor Whitman's Press Release, dated August 5, 1997.
The enactment of Sections 3.3 and 3.4 places New Jersey in compliance with the federal "Driver's Privacy Protection Act, 19 U.S.C. ¶ 2721-2725, which prohibits states from disclosing personal information contained in motor vehicle records except under certain, specified circumstances. Congress passed that Act in response to the murder of a young actress by an obsessed fan who had hired a private investigator to gather personal information, including her address, from the California Division of Motor Vehicles. Additional examples illustrating the potential for invasive and dangerous use of motor vehicle records were set forth in the Congressional records. See 139 Cong. Rec. § 15,745-01 (1993) (statement of Senator Boxer):
In Iowa, a gang of teenagers copied down the license plate numbers of expensive cars, obtained the home addresses of the owners from the Department of Transportation, and then robbed them at night.
In Tempe, Arizona, a woman was murdered by a man who had obtained her home address from that State's DMV.
And, in California, a 31-year-old man copied down the license plate numbers of five women in their early twenties, obtained their home address from the DMV and then sent them threatening letters at home.
Recognizing the legitimate concern of motorists that identifying information, such as their home address and social security number, not be released indiscriminately to the general public, the Legislature passed Section 3.4, which prohibits the disclosure of "personal information about any individual obtained by the [DMV] in connection with a motor vehicle record." N.J.S.A. 39:2-3.4. Section 3.3, in turn, defines "personal information" to include "information that identifies an individual, including an individual's photograph; social security number; driver identification number; name; address other than the five-digit zip code; telephone number; and medical or disability information." N.J.S.A. 39:2-3.3. Personal information, however, does not include information related to vehicular accidents, driving violations, or a driver's status. Ibid.
Despite that restriction on the public's access to DMV records, the Legislature provided an exception for the disclosure of such personal information for law enforcement purposes. N.J.S.A. 39:2-3.4(c)(1) provides that the personal information listed above "shall be disclosed for use in connection with matters of motor vehicle or driver safety and theft" and may be disclosed "[f]or use by any government agency, including any court or law enforcement agency in carrying out its functions."
Petitioners assert that the police should not be permitted to process an inquiry through the MDT until they observe a driver commit an apparent motor vehicle violation. We disagree. The use of MDTs by police officers should not be limited only to those instances when they actually witness a violation of motor vehicle laws. By the time an officer observes a vehicle improperly change lanes or speed down the highway, that officer no longer needs to use the MDT. The officer has a permissible basis to effectuate a stop.
The United States Supreme Court has recognized that "it is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of [an] automobile. . . . The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a 'search.'" New York v. Class, 475 U.S. 106, 114, 106 S. Ct. 960, 966, 89 L. Ed.2d 81, 90 (1986); see also Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed.2d 576, 582 (1967) (stating that Fourth Amendment does not protect what "a person knowingly exposes to the public"). Although the Class Court considered the expectation of privacy in a vehicle identification number, the same analysis logically applies to a vehicle's license plate, which is displayed on the exterior of the car in plain view. Moreover, the Legislature has required the display of a license plate on both the front and rear of all cars registered in New Jersey. N.J.S.A. 39:3-33. The very purpose of that law is to identify the owner of a car should the need arise from his or her license plate. To fulfill that purpose, police officers randomly using MDTs should have the right to determine from a motorist's license plate the status of the vehicle and the driving status of the registered owner, i.e., whether the car is registered, stolen, and whether the registered owner is licensed. It does not appear, however, that the Legislature contemplated that Sections 3.3 and 3.4 would permit the random use of MDTs to secure "the personal information" of motorists by police officers who had no reason to suspect wrongdoing.
In enacting Sections 3.3 and 3.4, the Legislature balanced the State's goals to maintain highway safety by ensuring that only qualified drivers operate safe motor vehicles, by protecting law enforcement officers in fulfilling their duties and by protecting motorists from unnecessary disclosure of their personal information. To best balance those concerns, the data displays of the MDTs should be reprogrammed 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. With the reprogrammed MDTs, police officers who were using MDTs at random and who lacked suspicion could access only non private information. Nonetheless, if the initial MDT inquiry disclosed that the car was unregistered, reported stolen or that registered owner was not properly licensed, that information would then justify the police officer accessing the "personal information" from the MDT. The ability of law enforcement officers under step-two to access full information identifying motorists will help protect those officers from danger as they stop and approach motor vehicles.
The concurrence asserts that the Legislature intended to prohibit the random use of MDTs because such use does not constitute the "carrying out [of law enforcement] functions." Supra, at 7 (slip op. at ___). Such a finding would render MDTs useless as efficient investigative tools. That was not the Legislature's intent in enacting Sections 3.3 and 3.4. A spot check of a license and registration status contributes to public safety. Removing unlicensed drivers and unregistered and stolen vehicles from the road promotes public safety. Under the two step process, the information most useful to patrol officers, such as the motorist's license and registration status, would be available to advance legitimate, enforcement-based interests. An officer who sees a license plate in plain view will be able to compare it to a computerized list of plates belonging to cars that are unregistered, reported stolen, or driven by an unlicensed driver.
For example, if the reprogrammed MDT revealed that a passing car was unregistered, the officer could stop the car on the reasonable suspicion that its driver was operating an unregistered vehicle in violation of N.J.S.A. 39:3-4. If the reprogrammed MDT revealed that a passing car was reported stolen, the officer would have a sufficient basis to stop the car in the belief either that the driver committed the theft or that the investigative stop would generate evidence relating to the theft. If the reprogrammed MDT informed the officer that the car's owner had an expired or revoked license, the officer would have adequate grounds to stop that vehicle as well.
We acknowledge that the two-step process would not preclude an officer from using the original inquiry screen to obtain "personal information," that the proper use of MDTs and the information accessed therefrom depends on the officer's discretion, and that officers could obtain such personal information from other sources. However, we assume that the law enforcement community will use the MDTs properly and will comply with the restrictions imposed by the Court. In this appeal, there are no claims that the police targeted or stopped petitioners' cars based on impermissible motives. Nevertheless, petitioners continue to assert that under the two step process, police use of MDTs will continue to pose the risk that law enforcement officers will abuse their discretion and access MDT databases for personal or impermissible reasons. We emphasize that it is the specific officer, not the use of the MDT, that poses the danger of improper targeting. In the future, if MDTs are abused, such misuse by any officer should be addressed and punished swiftly. The Attorney General should promulgate guidelines that establish disciplinary measures that will be imposed on any law enforcement officer for improperly using the MDT. The promulgation of those guidelines should substantially lessen any concerns about potential abuses that may arise from the random use of the MDT. We observe that police departments are not prohibited from imposing more restrictions on the random use of MDTs by their police officers than are imposed in this opinion.
We also understand that the advances of technology may have outdistanced the privacy concerns that we now address. Nonetheless, we believe that the two-step process best achieves the Legislature's goals in enacting Sections 3.3 and 3.4.
Based on information set forth in the Attorney General's letter of August 14, 1998 to the Court, we recognize that time will be required to modify the MDTs used by the numerous law enforcement agencies throughout the State to implement the two step process ordered by this opinion. Such reprogramming, however, should be completed by June 1, 1999. Until that installation process is complete, however, law enforcement agencies throughout the State should be permitted to randomly use MDTs for valid law enforcement reasons. Because of the Legislature's stated concern for the nondisclosure of a motorist's personal information, the Attorney General should caution law enforcement agencies against the indiscriminate use of MDTs during that interim period.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
and COLEMAN join in JUSTICE GARIBALDI's opinion. JUSTICE STEIN
has filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
134 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURO I. DONIS,
Defendant-Appellant.
_____________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HEIDI M. GORDON,
Defendant-Appellant.
STEIN, J., concurring.
Confronted with a challenge to the constitutionality of
random use of mobile data terminals (MDTs) by police officers,
the Court concludes -- correctly, in my view -- that the
controlling statutes do not "permit the random use of MDTs to
secure[] 'personal information' of motorists by police officers
who had no reason to suspect wrongdoing." Ante at ___ (slip op.
at 15). To implement that conclusion, the Court orders the
reprogramming of MDTs in order to provide a police officer with
information about the current status of a vehicle owner's
registration and driver's license without making available to
that officer any personal information about the vehicle owner.
Ante at ___ (slip op. at 15-16). Regrettably, the Court
undermines its own conclusion and dilutes the usefulness and
clarity of its opinion when it permits police officers, pending
completion of the MDT programming, to continue to use MDTs to
make random, suspicionless look-ups of motorists' personal
information, in direct contravention of the Court's
interpretation of the controlling statutes. Although I am in
substantial agreement with the Court's disposition of this
appeal, I write separately to express my disagreement with the
Court's unwillingness to hold unconditionally that random use of
MDTs by police officers to obtain motorists' personal information
is impermissible conduct that violates N.J.S.A. 39:2-3.4(c).
The Court's grant of certification in these consolidated
appeals required it to consider only the question whether random
police entry of motor vehicle license plate numbers into MDTs to
gain access to the computerized databases of the New Jersey
Division of Motor Vehicles (DMV) violates Article I, Paragraph 7
of the New Jersey Constitution. Although the Court's opinion
acknowledges and addresses that issue, ante at ___ - ___, ___
___ (slip op. at 9-10, 13-15), it stops short of deciding it,
electing instead to treat the legality of police officers' random
use of MDTs primarily as an issue of statutory interpretation.
Ante at ___-___ (slip op. at 15-18). That approach is consistent
with this Court's traditional policy of avoiding constitutional
adjudications whenever legal issues presented can be resolved on
non-constitutional grounds. See O'Keefe v. Passaic Valley Water
Comm'n,
132 N.J. 234, 240-42 (1993).
The Court's opinion describes the statutory context
underlying its disposition. Ante at ___-___ (slip op. at 10-13).
The Legislature has authorized the Director of DMV to "[c]ollect
such data with respect to the proper restrictions to be placed
upon motor vehicles and their use upon the public roads,
turnpikes and thoroughfares as shall seem for the public good."
N.J.S.A. 39:2-3(c). Prior to 1997, except as otherwise provided
by law all records required to be maintained by DMV constituted
public records subject to the Right to Know Law, N.J.S.A. 47:1A-1
to -4. See N.J.A.C. 13:18-11.3(a). In 1997, however, the New
Jersey Legislature enacted legislation that sharply restricted
access to personal information about motorists that had been
compiled and accumulated by the DMV. L. 1997, c. 188. Codified
at N.J.S.A. 39:2-3.3 and -3.4, the amendatory legislation was
designed to comply with the federal Driver's Privacy Protection
Act, 18 U.S.C. §§ 2721-2725, which imposed significant
restrictions on the authority of State motor vehicle departments
to disseminate or disclose personal information concerning
motorists,
18 U.S.C. §2721, and authorized criminal fines on
individuals and civil penalties of up to $5,000 per day on any
State Department of Motor Vehicles whose practices were in
substantial noncompliance with the Act.
18 U.S.C. §2723. As
the Court's opinion relates, the federal act was passed by
Congress in response to numerous incidents throughout the country
involving violence, threats of violence and other criminal acts
against victims whose home addresses had been obtained by
inappropriate use of State motor vehicle records. Ante at ___
(slip op. at 12).
Directly responding to the concerns underlying the federal
legislation, the Legislature enacted N.J.S.A. 39:2-3.3 and -3.4.
Section 3.3 defines "personal information" as follows:
"Personal information" means information
that identifies an individual, including an
individual's photograph; social security
number; driver identification number; name;
address other than the five-digit zip code;
telephone number; and medical or disability
information, but does not include information
on vehicular accidents, driving violations,
and driver's status.
Section 3.4 prohibits, subject to other qualifying subsections,
the DMV or its employees from disclosing "personal information"
about any individual obtained by the division in connection with
a motor vehicle record. N.J.S.A. 39:2-3.4(a).
The statute requires disclosure of personal information in
connection with "matters of motor vehicle or driver safety and
theft," N.J.S.A. 39:2-3.4(c), and permits disclosure of personal
information "[f]or use by any government agency, including any
court or law enforcement agency in carrying out its functions, or
any private person or entity acting on behalf of a federal, State
or local agency in carrying out its functions." N.J.S.A. 39:2
3.4(c)(1). That authorization of disclosure of personal
information to government or law enforcement agencies tracks
verbatim an identical authorization in the federal statute.
18 U.S.C. §2721(b)(1). The question of statutory interpretation
raised by these appeals is whether completely random,
suspicionless use of MDTs by police officers to obtain both
personal and non-personal information constitutes "use by [a] . .
. law enforcement agency in carrying out its functions."
The record in these appeals demonstrates unequivocally that
no reasonable suspicion or other specific facts precipitated the
police officers' MDT inquiries concerning these petitioners.
Donis, a Latino, and Gordon, an African-American, were driving
lawfully and properly in front of (Donis) or past (Gordon) a
police officer on routine patrol in a police car. Neither
officer observed any driving or equipment violations. Both
officers entered the license plate numbers of the cars into their
MDTs.
The arresting officer in Donis testified that he entered
Donis's license plate number in his MDT for "no articulable
reason" other than "he just happened to be behind" Donis's car.
He testified that he was not following any departmental
instructions or law enforcement guidelines and that he typically
conducts "random" MDT searches of cars in front of him if he is
"not doing anything else." The police officer in Gordon, who was
parked at the side of the road, testified that, as he did that
day, he was in the "habit" of conducting 200 or more random
computer searches while on patrol. As the Court's opinion
explains, the MDT searches of Donis and Gordon disclosed to the
respective police officers "personal" and non-personal
information as defined in N.J.S.A. 39:2-3.3.
Without explanation, the Court concludes that in enacting
N.J.S.A. 39:2-3.3 and -3.4 the Legislature did not contemplate
that those sections "would permit the random use of MDTs to
secure [] 'personal information' of motorists by police officers
who had no reason to suspect wrongdoing." Ante at ___ (slip op.
at 15). Except for the testimony of the arresting officers, no
evidence in the record illuminates our understanding concerning
customary police department usage of MDTs. The briefs inform us
that the State's motion to the Appellate Division in Donis for a
remand to establish an adequate evidentiary record was granted.
We also are informed that on remand Donis unsuccessfully moved to
compel discovery concerning the West Windsor Police Department's
use of MDTs during the prior year, and that Donis's proffer of
two female fact witnesses who would have testified about their
experiences with two New Jersey municipal police officers who
used MDTs to acquire personal information about them in pursuit
of unwanted romantic interests was rejected by the trial court.
In my view, however, the statutory standard that limits
police department use of MDTs to obtain personal information only
to uses constituting the "carrying out [of law enforcement]
functions" is a sufficient indication of legislative intent to
demonstrate that random and suspicionless use of MDTs is not
authorized. That interpretation of the statute is consistent
with federal and state decisional law concerning the standards
governing a police officer's authority to make an investigatory
stop. Our cases hold that "an investigatory stop is valid only
if the officer has a 'particularized suspicion' based upon an
objective observation that the person stopped has been or is
about to engage in criminal wrongdoing." State v. Davis,
104 N.J. 490, 504 (1986). Accord, State v. Citarella,
154 N.J. 272,
278-80 (1998); State v. Arthur,
149 N.J. 1, 7-10 (1997); see also
United States v. Brignoni-Ponce,
422 U.S. 873, 884, 95 S. Ct.
2574, 2582,
45 L. Ed.2d 607, 618 (1975)(holding that "officers .
. . may stop vehicles only if they are aware of specific
articulable facts, together with the rational inferences from
those facts, that reasonably warrant suspicion that the vehicles"
were involved in criminal activity); State v. Dickey,
152 N.J. 468, 475 (1998)(noting that "the decision to stop an automobile
is reasonable where the police have probable cause to believe
that a traffic violation has occurred.")(quoting Whren v. United
States,
517 U.S. 806, 810,
116 S. Ct. 1769, 1772,
135 L. Ed.2d 89, 95-96 (1996)); State v. Kirk,
202 N.J. Super. 28, 55 (App.
Div. 1985) (invalidating roadblock, stop, and seizure of
defendant, and holding that State must justify roadblock
procedures, and demonstrate substantial public benefit from road
block stops as well as appropriate control of discretion of
officers operating roadblock).
Concededly, a suspicionless stop of a motor vehicle to
obtain information from its occupants is an imperfect analogy to
the suspicionless use of an MDT to obtain "personal information"
concerning the vehicle and its owner. But the principle that
prohibits investigative stops of motor vehicles absent suspicion
of unlawful activity is consistent with an interpretation of the
DMV statute recognizing that random and suspicionless use of MDTs
to obtain personal information about the owners of lawfully
operated motor vehicles is unauthorized. In each instance, the
underlying rationale is the protection of law-abiding citizens
from unreasonable police intrusions. That a motorist is unaware
of a police officer's random entry of his vehicle's license plate
number into an MDT to obtain personal information does not lessen
the intrusiveness of the officer's conduct.
Because the intrusion occasioned by the use of MDTs is less
invasive than that resulting from a suspicionless seizure of a
motor vehicle, I would find acceptable a standard less
restrictive than reasonable suspicion of criminal activity to
justify police use of MDTs. An obvious example might be a report
of an unfamiliar vehicle parked in a residential neighborhood for
several days, an occurrence that readily would justify resort to
an MDT to obtain information about the vehicle and its owner. I
would consider any police use of MDTs that reasonably was related
to an appropriate law enforcement purpose to be consistent with
the controlling statutory standard, adopted by both Congress and
our Legislature, that permits disclosure of motor vehicle agency
personal information to a "law enforcement agency in carrying out
its functions."
18 U.S.C. §2721(b)(1); N.J.S.A. 39:2-3.4(c)(1).
Random and suspicionless use of MDTs, however, constitutes not
only an unproductive application of police resources but one that
reflects only a marginal likelihood of advancing law enforcement
objectives. Accordingly, I conclude, as does the Court, that a
police officer who unilaterally makes random, suspicionless use
of an MDT to obtain personal information about a motor vehicle's
owner is acting beyond his authority and is not "carrying out
[the] functions of a law enforcement agency" within the meaning
of those statutes.
That conclusion compels me to disagree with the Court when,
contradicting its own legal determination, it authorizes "law
enforcement agencies throughout the State . . . to randomly use
MDTs for valid law enforcement reasons," pending completion of
the MDT reprogramming ordered by the Court. Ante at ___ (slip
op. at 20). Obviously, use of MDTs for "valid law enforcement
reasons" is authorized by statute and does not require additional
authorization by the Court. If the Court is implying that all
random uses of MDTs are for "valid law enforcement reasons," its
earlier conclusion that the Legislature did not authorize random
use of MDTs to obtain personal information, ante at ___ (slip op.
at 15), is undermined. The Court would better serve the public
interest, and the interests of law enforcement, to hold
unequivocally that random and suspicionless use of MDTs by police
officers to obtain "personal information" is unauthorized.
One final observation: I would sustain these convictions
despite my view that the police officers' random use of their
MDTs was impermissible. As the Court's opinion explains, when
the MDT gains access to the "DMV name" screen, that screen
displays a code indicating whether the license or registration is
suspended. That information does not constitute "personal
information" under the statute, see N.J.S.A. 39:2-3.3, and it was
the information that both petitioners' driver's licenses were
suspended that led the officers to stop both vehicles. In short,
although "personal information" also was revealed on the MDT
screens, that personal information did not give rise to the
investigatory stops that resulted in the issuances of the
summonses at issue in these appeals.
NO. A-134 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURO I. DONIS,
Defendant-Appellant.
-----------------------------------------------
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HEIDI M. GORDON,
Defendant-Appellant.
DECIDED December 10, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY Justice Stein
DISSENTING OPINION BY
Footnote: 1 1 The Appellate Division also consolidated the Donis and Gordon appeals with that of Nathan Levine. However, because Levine did not petition this Court for certification, that case is not addressed.