On appeal from the Superior Court, Law Division, Bergen County.
King, Gaulkin and Gruccio. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant, charged with two counts of armed robbery, moved prior to trial to suppress evidence seized in a warrantless search of a car he was driving. Following an evidentiary hearing the Law Division judge granted the motion, finding that defendant had been unlawfully stopped in violation of Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). By leave granted (R. 2:2-4), the State appeals.
Defendant was driving alone in his mother's 1970 Chevrolet Nova shortly after midnight on November 20, 1985, when he was stopped by New Milford Police Officer Frank Papapietro.
The officer testified that he stopped the automobile because of a report "exchanged" within the New Milford police department "that the driver of this vehicle could have a suspended driver's license." He had been told the vehicle plate number, that the car was a brown or green Chevrolet Nova and that "the operator may be Mr. Spencer."
As Papapietro was traveling north on River Road, he passed a car going south. Papapietro was "able to recognize" the car as a Chevrolet Nova and that the driver was a "white Caucasian," but he could not see the license plate. He made a U-turn and started after the car; it took some time for him "to get close enough to the vehicle to stop it." Just before the stop, Papapietro was able to see the license plate and, although he "could only remember part of" the plate number previously given to him, that part corresponded to the plate on the car.
When stopped, defendant was unable to produce the car registration, a driver's license or any other identification. In response to a radioed request for a license check, Papapietro was told that defendant's license was suspended. He conducted a pat-down and palpated an object in defendant's sock which he found to be a hypodermic needle and syringe. Papapietro thereupon arrested defendant and took him to headquarters. The car was impounded, taken to headquarters and "inventoried." In the trunk Papapietro found a machine gun and clip.
The motion judge apparently credited Papapietro's testimony, but concluded that the stop was "arbitrary" and conducted for "absolutely no reason whatsoever except the group of 'perhaps' coincident circumstances, a Nova, a white male." Invoking Delaware v. Prouse, the judge held that Papapietro had made "a random stop which is violative of the constitutional right of privacy."
Delaware v. Prouse holds that stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment "except in those situations in which there is
at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law. . . ." 440 U.S. at 663, 99 S. Ct. at 1401. Those strictures are imposed in order to limit what would otherwise be "the unbridled discretion of law enforcement officials" (id. at 661, 99 S. Ct. at 1400) to intrude "upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches. . . ." Id. (citing Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968)).
The State's argument in support of the stop is uncomplicated: Papapietro did not exercise "unbridled discretion," but acted on the basis of specific information which narrowly focused on the car defendant was driving. Since he had been informed by his department that the driver of a particularly described vehicle might not be licensed, Papapietro had ...