Before Judges Stern, Kestin and Wefing.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Supplemental briefs filed May 9, 2000 and May 22, 2000 - Decided
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.
Argued April 12, 2000 Supplemental briefs filed May 9, 2000 and May 22, 2000 - Decided
On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Pursuant to leave granted, the State appeals from discovery orders entered by judges in Bergen, Burlington and Hunterdon counties. The orders grant defendants discovery of information they seek to support claims of "racial profiling." Pursuant to the Supreme Court's "Administrative Determination and Order" of January 31, 2000, this Part of the Appellate Division has been designated by the Presiding Judge for Administration as the Part designated to hear appeals arising from discovery orders in "racial profiling" cases involving the State Police. Because of the special designation, the common issues involved, and the impact of the claims with respect to the need for uniformity, we heard argument in all three cases simultaneously, with three judges constituting the panel in each. See R. 2:13-2(b). Judges Stern, Kestin and Wefing constituted the panel in State v. Ballard; Judges Stern, Kestin and Steinberg constituted the panel in State v. Maiolino, and Judges Stern, Wefing and Steinberg constituted the panel in State v. Dickerson. We now consolidate these appeals for purposes of this opinion.
The parties agree that discovery is required to establish a claim of selective enforcement in violation of the federal or State Constitutions, and that the threshold issue before us is whether a sufficient showing has been made in each case to justify or warrant the grant of that discovery.
After hearing the arguments in common, the respective panels conclude that there is a sufficient basis shown in the record of each case to warrant the granting of discovery in furtherance of a claim of selective enforcement of the motor vehicle laws of New Jersey by the State Police. Stated differently, we hold that the defendants involved in these appeals are generally entitled to discovery in contemplation of motions to suppress or motions to dismiss their post-arrest indictments for criminal offenses.
Consideration of the discovery orders involved in the three cases before us also generates consistent agreement among the three panels that uniformity is required with respect to the scope of discovery. Accordingly, we remand these cases to the Law Division judge designated by the Supreme Court to hear discovery motions in the first instance with respect to claims of "racial profiling" by the State Police. That judge should decide all issues concerning the scope of discovery, subject to the caveats expressed hereinafter.
In State v. Ballard, the State appeals from an order of the Law Division, Bergen County, entered on August 30, 1999, requiring it to produce: "1. Records (including arrest reports, radio logs, patrol charts and summonses issued) of all motor vehicle stops made by New Jersey State Troopers David Bell and Daniel DaSilva on the New Jersey Turnpike and Interstate Route 80 during the 35 days each worked prior to November 17, 1997 [the date of defendants' arrest]; and 2. the specific radio log regarding the traffic stop in this matter on November 17, 1997 by Troopers Bell and DaSilva . . . ."
After defendant Tony McCoy's vehicle was stopped on the Turnpike for motor vehicle violations and McCoy was unable to produce a license or registration, Trooper Bell discovered four waxpaper folds containing white powder in the automobile's center console and then a chunky substance believed to be crack cocaine in a sanitary napkin bag. The substance in the four paper-folds tested negative for drugs, but the Ziploc bag revealed 6.6 ounces of cocaine. Defendants were indicted for first-degree possession with intent to distribute more than 5 ounces of cocaine and for possession of cocaine. On this appeal the State argues that "the trial court erred in granting defendants discovery of State Police records to support [their] claim of selective enforcement," because in relying upon the April 1999 Interim Report of the State Police Review Team Regarding Racial Profiling Allegations (hereinafter "Interim Report"), "the lower court relied on the standard for discovery in a selective enforcement case articulated in State v. Kennedy, 247 N.J. Super. 21 (App. Div. 1991), rather than the standard more recently set forth by the United States Supreme Court in United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996), and applied by this court in State v. Smith, 306 N.J. Super. 370 (App. Div. 1997)." The State further contends that, in any event, "under either standard, the lower court erred in concluding that the Interim Report established a colorable basis for granting discovery of the patrol records and radio logs pertaining to individual troopers in the absence of any proffer whatsoever that their behavior was racially motivated."
In the consolidated cases of State v. Maiolino and State v. Ward and Ancrum, the State appeals from orders for discovery entered in Hunterdon County on October 8, 1999 and November 15, 1999. The first order, finding a "colorable basis" for a claim of "selective prosecution," addresses defendants' requests for seventy-six items relating to motor vehicle stops by the State Police on Interstate 78. The second order requires the parties' experts to "confer to agree on a process of random selection" by which documents will be analyzed for 100 random dates over a period of five years, and if the parties cannot agree, "the defense may select one hundred days as a representative sample."
In Maiolino, defendant was stopped for speeding, and after a state trooper allegedly smelled marijuana emanating from Maiolino's vehicle, he obtained consent to search her vehicle. The search allegedly yielded fifteen pounds of marijuana, resulting in an indictment charging possession with intent to distribute five to twenty-five pounds of marijuana, and possession of marijuana. In the consolidated Ancrum and Ward matter, the driver of the speeding vehicle in which Ancrum and Ward were riding was stopped by State Police and consented to a search of the vehicle. The search revealed cocaine in luggage, and a search incident to the arrest revealed marijuana possessed by Ancrum. Ward and Ancrum were indicted for possession and possession with intent to distribute cocaine.
The State argues that these defendants have not met the threshold to obtain selective enforcement discovery. The State relies principally on United States v. Armstrong, supra, 517 U.S. at 465, 116 S. Ct. at 1487, 134 L. Ed. 2d at 699, and State v. Smith, 306 N.J. Super. 370, 376-78 (App. Div. 1997), in arguing that a defendant must show "both that the . . . enforcement system has a discriminatory effect and that it was motivated by discriminatory purpose" against him or her personally or individually, requiring the defendant to "demonstrate that he or she has been the object of discrimination." In addition, the State argues that Maiolino has not even shown that she is Hispanic (as opposed to Italian), and that Ancrum and Ward were granted discovery merely because it was granted to Maiolino and they are African-Americans. Independently, the State argues that, particularly because these arrests occurred before the Interim Report was prepared, the "subsequent remedial actions" taken in response to the Report are not discoverable.
In State v. Dickerson, the State appeals from an "order of consolidation and discovery" entered on November 29, 1999 in Burlington County. The order consolidated pending indictments for purposes of discovery, permitted any defendant to join the motion, and further ordered twenty-four specific items of discovery covering stops and arrests along the entire length of the New Jersey Turnpike since January 1, 1993. In addition, the order provided that "the State may assert a claim of privilege as to individual documents, parts of documents or groups of documents" upon motion by using a "Vaughn" affidavit and index, *fn2 and restrained the State from interfering with any of defense counsel's efforts to speak with present or past employees of the State Police concerning racial profiling practices. The State indicates that "most defendants in this case are entitled to all relevant discovery that the law allows, subject to the limitations the law imposes," and then challenges the compelled "production of privileged, irrelevant or undiscoverable materials." The State also seeks reversal of that part of the order that requires disclosure of "prior drafts of official documents," including a draft of the Interim Report, and objects to the trial judge's denial of the State's asserted entitlement to "challeng[e] certain defendants' right to proceed in this litigation" by virtue of their failure to meet the threshold. The State also objects to automatic permission accorded future defendants to join the discovery application.
As can be seen from a thorough review of the three appeals now before us, the discovery is diverse in scope - covering only two troopers for a period of thirty-five days in Bergen County, 100 random days over five years on Interstate 78 with respect to the arresting troopers in Hunterdon County, and discovery in Burlington County of records of all stops and arrests by all troopers along the entire length of the Turnpike since January 1993.
The critical issue before us relates only to discovery. Discovery is appropriate if it will lead to relevant and material information. The parties seem to agree that the requested discovery would be relevant to whether defendants can successfully move for relief based on selective enforcement of the motor vehicle laws which led to the stops in question, as well as to the conduct of police officers subsequent to the stops.
The State acknowledges that because Exits 4 through 7 of the Turnpike are in Burlington County and those exits are covered by the studies referred to in the Interim Report and State v. Soto, 324 N.J. Super. 66 (Law Div. 1996), defendants in Burlington County are entitled to discovery of State Police stop and arrest records, unless there was no discretion involved in the police conduct resulting in their arrests. The State contends, however, that the discovery should be limited to the period after Soto was decided and to pertinent portions of the Turnpike. It also contends that those defendants who were stopped as a result of non-discretionary police conduct should not be able to delay, and as a result possibly avoid, traditional prosecution while the lengthy period of discovery and related motions involving "racial profiling" take their course. Similarly, the State contends that the defendants in Bergen and Hunterdon counties have not satisfied a "threshold" requirement entitling them to discovery in support of their selective enforcement claims.
The subject of selective prosecution was recently addressed by the United States Supreme Court in United States v. Armstrong, supra, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687. In that case, the defendants sought to dismiss a federal indictment on the grounds that they had been discriminated against by means of selective prosecution. The Court indicated that "a selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." Armstrong, supra, 517 U.S. at 463, 116 S. Ct. at 1486, 134 L. Ed. 2d at 698. The burden that a defendant must meet to establish such a claim "is a demanding one." Ibid. He or she must demonstrate that the criminal laws were "directed so exclusively against a particular class" so as to amount to a "practical denial" of equal protection under the law. Id. at 464-65, 116 S. Ct. at 1486, 134 L. Ed. 2d at 698 (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S. Ct. 1064, 1073, 30 L. Ed. 220 (1886)).
To prevail on a claim of selective prosecution, the defendant must provide "clear evidence" to overcome the presumption that the prosecutor has not acted unconstitutionally, given the general deference to which prosecutorial decisions are entitled. Id. at 465, 116 S. Ct. at 1486, 134 L. Ed. 2d at 698-99. However, the requirements for showing discrimination in the prosecution process "draw on 'ordinary equal protection standards.'" Id. at 465, 116 S. Ct. at 1487, 134 L. Ed. 2d at 699 (citation omitted). Thus, the defendant must show that similarly situated individuals of a different class were not prosecuted for similar crimes. Ibid. Stated differently, in order to prevail on a selective prosecution claim, a defendant must prove that the "prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose,'" and that "similarly situated individuals of a different race" were treated differently. Ibid. Once a prima facie showing of a discriminatory prosecution has been made, however, "'the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.'" Washington v. Davis, 426 U.S. 229, 241, 96 S. Ct. 2040, 2048, 48 L. Ed. 2d 597, 608 (1976) (quoting Alexander v. Louisiana, 405 U.S. 625, 632, 92 S. Ct. 1221, 1226, 31 L. Ed. 2d 536, 542 (1972)). See also State v. Perry, 124 N.J. 128, 166-68 (1991); State v. DiFrisco, 118 N.J. 253, 265-66 (1990) (noting that the burden of proving selective enforcement is "heavy"; defendant must prove "intentional selectivity" and "an unjustifiable basis for the discrimination").
We need not, at this juncture, consider whether there is any difference with respect to a claim of selective enforcement by arresting officers and one involving selective prosecution by the State or prosecuting attorney. We reserve for future development any differences in remedy. Nor need we decide whether there is any independent state ground to evaluate an automobile stop based on "racial profiling." *fn3 As noted at the outset, we are now dealing only with an issue of discovery - an issue that we have addressed before in a different context.
In State v. Kennedy, 247 N.J. Super. 21 (App. Div. 1991), the defendants, non-Caucasians, were stopped for speeding on Interstate 80 in Warren County. Drugs were found in their vehicle and they were arrested. On appeal from their convictions, the defendants claimed that the trial court erred in denying their motion for discovery of State Police records which allegedly supported their claim of selective enforcement. In addressing that issue, Judge Baime, writing for a unanimous court, held that "a defendant must establish a colorable basis for a claim of selective enforcement in order to obtain pretrial discovery of relevant items in the exclusive control of a government agency." Id. at 25. To do so "a defendant must present 'some evidence tending to show the existence of the essential elements of the ...