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State v. Bromell

Decided: May 30, 1991.

STATE OF NEW JERSEY, PLAINTIFF,
v.
DOUGLAS BROMELL AND EDWIN G. MEIER, DEFENDANTS



O'Hagan, J.s.c.

O'hagan

The defendants Douglas Bromell and Edwin Meier, by way of motion to suppress pursuant to R. 3:5-7, seek to suppress evidence seized by members of the auto theft unit of the New Jersey State Police during a search conducted at Doug's Auto Body on April 6, 1990. The respective motions were filed in a timely fashion pursuant to R. 3:5-7(a). The court has jurisdiction under R. 3:5-7(a). The principle issue in this case is whether the warrantless search of an auto body repair facility, conducted pursuant to a statute authorizing such search, falls within the exception to the warrant requirement for administrative or regulatory inspections of pervasively regulated industries.

This court holds that it does and therefore the defendants' motion to suppress the evidence is denied.

I.

Defendant Douglas Bromell Sr. is the owner of Doug's Auto Body, an auto-body repair facility located in Farmingdale, New Jersey. Doug's Auto Body is situated at the end of a long driveway leading in from the public street. It consists of a garage and several auto-repair bays surrounded by approximately three acres of property. No clear evidence was established concerning the existence of a fence surrounding the premises. The court drew the inference, however, that clients or customers would use the driveway to gain entrance and would do their business or negotiations in the area of the garage itself. On April 6, 1990, Detective Sgt. Robert Penrose of the New Jersey State Police Auto Theft Unit, accompanied by two other detectives from that unit, performed an inspection of Doug's Auto Body pursuant to N.J.S.A. 39:13-3 and the regulations provided by N.J.A.C. 13:21-21.1 et seq. Upon arriving at the site, the state police were approached by Douglas Bromell Jr., the owner's son. The officers asked Bromell Jr. to notify his father of their presence and awaited the arrival of defendant-owner before undertaking the inspection. Defendant, Douglas Bromell Sr., was then provided with information regarding the statutory authority and scope of the inspection. The search was limited to an examination of the owner's operating license, his employee list and a verification of proper title to all the vehicles and component parts on the site.

The inspection of Doug's Auto Body revealed that approximately 40 vehicles were on the premises. The subject of the instant suppression motion was the front clip*fn1 of a 1979 Corvette

that, because of its proximity to a rear clip from another Corvette, appeared to be one single Corvette cut in half. The testimony of Detective Sgt. Penrose revealed that there was neither a drive train nor an interior in the front clip. The front and rear clips were found behind the garage in a location not visible from the driveway or the front of the garage. Detective Sgt. Penrose candidly admitted that the customers of the business would not ordinarily go to that location. The detective's attention was drawn to the front clip because no vehicle identification number (hereinafter VIN) was found in the public location on it. The evidence revealed that the VIN had been removed, apparently intentionally. Using information provided by the manufacturer, Detective Sgt. Penrose was able to find the correct VIN. A computer lookup revealed that the 1979 Corvette was an "active theft" having been reported stolen by its owner Edwin Meier on September 30, 1989. Apparently, codefendant Meier had received insurance monies thereafter on account of the vehicle's theft. The state police on April 6, 1990 impounded the front clip of the corvette and had it removed.

The only witness who gave testimony at the hearing on this motion was Detective Sgt. Robert Penrose, a veteran of almost 20 years with the state police. The detective indicated that as one of the 12 members of the auto theft unit of the state police, he conducts regulatory searches of auto-body repair facilities throughout the counties of Ocean, Monmouth, and Middlesex. Each member of his unit conducts between one and two searches of auto-body repair facilities each month. Although he was unable to estimate the total number of auto-body repair facilities within his region, Penrose noted that the number is in the hundreds. He stated further that some facilities have never been inspected and may never be inspected over the course of the entire life of the business. Further, once inspected,

the resources and manpower of the unit do not allow for a reinspection.

Seventy-five percent of all the "regulatory" inspections done by the auto theft unit are in response to a tip or information received suggesting that illegal activities are in progress. The other 25 percent of the inspections done by the unit are random spot-checks. Detective Sgt. Penrose stated that the instant search was conducted pursuant to a tip. He admitted that, but for the tip provided, Doug's Auto Body would not have been searched on April 6, 1990.

The information or "tip" that formed the basis for searching Doug's Auto Body arose in the following manner. Detective Sgt. Penrose stated that the state police had long suspected John Fernicola, the employer of defendant Meier, of involvement in auto theft activities. In the course of the Fernicola investigation, the state police spoke to his estranged wife, Rebecca Fernicola. Rebecca Fernicola revealed that Douglas Bromell Sr., the owner of Doug's Auto Body, was a good friend of her husband and was possibly involved in a car theft ring with him. Acting on this information, without a search warrant, Detective Sgt. Penrose decided to conduct an inspection of Doug's Auto Body pursuant to N.J.S.A. 39:13-3.

The State concedes that, absent statutory authority, the state police could not have validly searched Doug's Auto Body without first having secured a search warrant. The basis of the tip was speculative and the detectives did not have probable cause to believe that a crime was being committed until Bromell failed to produce proof of ownership for certain vehicles and Detective Penrose noted the missing VIN on the Corvette. Further, it has not been demonstrated that exigent circumstances existed which justified ...


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