On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
O'Brien, Havey and Conley. The opinion of the court was delivered by O'Brien, J.A.D.
The opinion of the court was delivered by
In this driving while intoxicated (DWI) case, defendant appeals from the denial of his motion to suppress based upon his contention that the roadside safety check in which he was stopped violated his state and federal constitutional rights. We reverse and remand for reconsideration.
On August 9, 1990, the Bordentown City Police and the State Division of Motor Vehicles (DMV) conducted a "roadside safety check" in which local police and a team of inspectors from the DMV stopped oncoming cars to conduct an inspection of the vehicle and the credentials of the operator. The particular roadblock under review was conducted on Park Street, which had been selected by the chief of police. Park Street is a long, straight roadway, adjacent to which is a lot approximately 200 feet long and 50 feet deep owned by Ocean Spray and used by it to park tractor trailers not in use. This location was selected because the lot was a safe place to pull vehicles off the road for inspection, not because of any history of accidents in this area. Signs approximately three and one-half feet square were posted for both eastbound and westbound traffic, advising approaching vehicles to use caution because there was a roadside check ahead. Fifty feet beyond the sign, traffic cones were lined up in the middle of the roadway.
The officers on the roadway had been orally instructed by the police chief to stop every fifth vehicle as well as any vehicle with an obvious equipment violation, such as a broken headlight or cracked windshield, or an overdue inspection sticker. The vehicles stopped were directed over to the adjacent lot where the vehicle was inspected for "just about everything that would be checked in the motor vehicle inspection; tires, lights, horns, pollution -- and documentation."
The roadside safety check was conducted from 9:00 a.m. to 3:00 p.m. These hours were selected because of the availability of the motor vehicle inspectors. The request for the roadside inspection emanated from the police department to the DMV and was then set up based upon the availability of DMV inspectors.*fn1 This was the first roadside safety check conducted by this department and no advance publicity or notice had been given that it was to be held. One other has been conducted since. At approximately 10:30 a.m., defendant's pickup truck was stopped because it was a fifth car in the line. It did not have any obvious equipment violations nor an overdue inspection sticker. Defendant was found to be intoxicated and was charged with DWI (N.J.S.A. 39:4-50).*fn2
Defendant moved before the Bordentown Municipal Court to suppress evidence of his intoxication because of the warrantless seizure of his vehicle in the roadside safety check. Defendant contended that stopping his vehicle violated his Fourth Amendment rights under the United States Constitution, and his rights under Article I, paragraph 7, of the New Jersey Constitution. The municipal court Judge denied the motion, finding that the police conducted the roadblock at the request of motor vehicle
inspectors who had absolutely no police authority. He found it to be a roadside safety check by the DMV, which has the right and statutory duty to perform safety inspections of motor vehicles. He found that when, in the course of the safety inspection, they came upon defendant under the influence of alcohol, the DMV inspectors "called in standby police." Defendant then pled guilty to DWI and was sentenced.
Defendant appealed to the Law Division. After extensive oral argument the Law Division Judge rendered a written opinion on June 18, 1991, denying the motion to suppress. Defendant was again found guilty of DWI and sentenced. Although initially the stay granted by the municipal court was vacated, the judgment was stayed pending defendant's appeal to us by consent order dated June 24, 1991.
It is conceded by the State that unreasonable searches and seizures are prohibited by the Fourth Amendment to the United States Constitution, as well as Article I, paragraph 7 of the New Jersey Constitution. New Jersey courts have interpreted Article I, paragraph 7 of our constitution to afford greater privacy protection and freedom from unreasonable searches and seizures than the Fourth Amendment to the United States Constitution. See State v. Hempele, 120 N.J. 182, 576 A.2d 793 (1990); State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1987); State v. Kirk, 202 N.J. Super. 28, 493 A.2d 1271 (App.Div.1985). In Kirk, we reviewed the law in New Jersey concerning the establishment of a sobriety roadblock, which had previously been approved by the Law Division in State v. Coccomo, 177 N.J. Super. 575, 427 A.2d 131 (Law Div.1979).
Earlier the Morris County Court in State v. Kabayama, 94 N.J. Super. 78, 226 A.2d 760 (Cty.Ct.), aff'd, 98 N.J. Super. 85, 236 A.2d 164 (App.Div.1967), aff'd o.b., 52 N.J. 507, 246 A.2d 714 (1968) had found a roadblock established by police to stop all automobiles for a routine check of drivers' licenses and vehicle registration certificates to be a reasonable exercise of the State's police power and not in violation of the drivers'
federal or state constitutional rights. In Kabayama, the roadblock was found to give effect to N.J.S.A. 39:3-29, requiring a driver to exhibit his driver's license and registration upon request.
However, after the United States Supreme Court decision in Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), Justice Clifford observed in State v. Carpentieri, 82 N.J. 546, 548, 414 A.2d 966 (1980):
There is, of course, no question that Prouse effected a radical departure from the state of our law as it existed up until the date of that decision, for until then such random stops were expressly authorized under case law in New Jersey, see State v. Gray, 59 N.J. 563, 567, 285 A.2d 1 (1971); State v. Braxton, 57 N.J. 286, 287, 271 A.2d 713 (1970); State v. Kabayama, 98 N.J. Super. 85, 87-88, 236 A.2d 164 (App.Div.1967), aff'd o.b., 52 N.J. 507, 246 A.2d 714 (1968), and at least inferentially under our statutory law, see N.J.S.A. 39:3-29.
Justice Handler observed in State v. Gervasio, 94 N.J. 23, 25, 462 A.2d 144 (1983), that Prouse "represented a clear break with the preexisting state of constitutional adjudication."
Delaware v. Prouse, held:
[T]hat 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, 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. [440 U.S. at 663, 99 S. Ct. at 1401.]
In reaching that Conclusion, the Prouse Court observed:
The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained. Furthermore, drivers without licenses are presumably the less safe drivers whose propensities may well exhibit themselves. Absent some empirical data to the contrary, it must be assumed that finding an unlicensed driver among those who commit traffic violations is a much more likely event than finding an unlicensed driver by choosing randomly from the entire universe of drivers. If this were not so, licensing of drivers would hardly be an effective means of promoting roadway safety . . . . The contribution to highway safety made by discretionary stops selected from among drivers generally will therefore be marginal at best . . . . In terms of actually discovering unlicensed drivers or deterring them from driving, the spot check does not appear
sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment. [ Id., 440 U.S. at 659-660, 99 S. Ct. at 1399.]
With regard to safety checks of the automobile the Court said:
Much the same can be said about the safety aspects of automobiles as distinguished from drivers. Many violations of minimum vehicle-safety requirements are observable, and something can be done about them by the observing officer, directly and immediately. Furthermore, in Delaware, as elsewhere, vehicles must carry and display current license plates, which themselves evidence that the vehicle is properly registered; and, under Delaware law, to qualify for annual registration a vehicle must pass the annual safety inspection and be properly insured. It does not appear, therefore, that a stop of a Delaware-registered vehicle is necessary in order to ascertain compliance with the State's registration requirements. [ Id. 440 U.S. at 660-661, 99 S. Ct. at 1399-1400.]
However, the Prouse Court explained:
This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one alternative. [ Id. 440 U.S. at 663, 99 S. Ct. at 1401.]
The United States Supreme Court again addressed the question in connection 0 with sobriety checkpoints in Michigan State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990) as we had in State v. Kirk, supra. In this case we do not deal with sobriety checkpoints where the public interest in ridding the highway of drunk drivers has been the subject of much empirical data and may even be self-evident. In a state which ...