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State v. Burks

March 10, 2010


On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0533.

Per curiam.


Submitted February 9, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

Following denial of his motion to suppress heroin recovered from his person during a traffic stop, defendant Tarence Burks entered a conditional plea of guilty to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1).

He was sentenced to a five-year probationary term and assessed appropriate fees and penalties. He appeals, arguing solely that the stop of his vehicle was not based on a reasonable and articulable suspicion of criminal activity and was, therefore, unconstitutional. We disagree and affirm.

The facts are not in dispute. On November 27, 2005, Newark police officers Miguel Rivera, Jr. and Mantingo Mendez were patrolling Frelinghuysen Avenue in their police cruiser. At approximately 7:30 p.m., Officer Rivera began conducting random license plate checks on his patrol car's mobile data terminal (MDT). This consisted of "pick[ing] a vehicle at random, enter[ing] the characters of that vehicle's plate [into the MDT], and hit[ting] the . . . F-1 key, which is just your basic information." Per the Supreme Court's decision in State v. Donis, 157 N.J. 44 (1998), this initial look-up - referred to as Step-1 - hides the owner's personal information, revealing only the registration status of the vehicle, the license status of the registered owner, whether the car is stolen or if there is an outstanding warrant for the owner of the vehicle.

On the MDTs used by the Newark Police Department, if any of this information comes back positive for illegal activity or the presence of an outstanding warrant, the MDT automatically proceeds to disclose "step-2" information.*fn1 See Donis, supra, 157 N.J. at 56. This information includes the owner's name, address, physical characteristics, social security number, and any available criminal records, "including warrants and holds."

When the officer inputted the license plate number of the vehicle in question, information from the MDT related that the registered owner of the car defendant was driving was wanted on an outstanding traffic warrant. Officers Rivera and Mendez then "initiated a traffic stop to see if the person driving the car was actually the [] registered owner." The officers approached the vehicle and asked defendant to produce proof of identification, which established he was in fact the registered owner.

At this time, the officers noticed defendant's speech was "slurred." Defendant was advised of the outstanding warrant for his arrest, handcuffed, and escorted from his vehicle to the officers' patrol car. Seconds later, defendant began to spit out glassine envelopes containing what was later tested positive as heroin. Defendant expectorated twenty envelopes in total, ten marked with the logo "441 Gangster" and five each marked "Direct Effect" and "Tiger Paw," respectively.

At his suppression hearing, defendant argued that the Newark Police Department's MDT protocol failed to comply with Donis in that the case did not sanction Step-1 disclosure of the outstanding warrant status of the vehicle's registered owner and that, absent independent probable cause, police should not have access to defendant's warrant information. The motion judge disagreed, finding the MDT procedure utilized in this case was sufficiently consistent with the Donis precepts to survive challenge. In denying the suppression motion, the judge reasoned: if there was anything going on with his license, [that] automatically kicks in the right to go to [step]-2. It seems very close to an outstanding warrant on the driver.

We're not talking about his criminal case history, whether he was ever convicted of a crime or anything else, anything about his Social Security number, anything else about his personal information. But here we have an outstanding warrant. Is that private information that someone has an outstanding bench warrant or detainer for a criminal act or failure to appear? I don't think that's private information.

[I] don't think that is the type of information that is improper to have come up in [step]-1 as to the owner of a vehicle who's driving on the streets. I don't think there's any right to privacy . . . [a]nd once that's shown, [step]-2 becomes available.

In this particular case, [the MDT] was programmed that once a warrant is outstanding, that [step]-2 automatically come[s] up . . . . I think that's the type of information that the police need and is no different than saying it's a ...

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