State v. Donis

STEIN, J.,

concurring.

Confronted with a challenge to the constitutionality of random use of mobile data terminals (MDTs) by police officers, the Court concludes — correctly, in my view — that the controlling statutes do not “permit the random use of MDTs to secure ‘... personal information’ of motorists by police officers who had no reason to suspect wrongdoing.” Ante at 55, 723 A.2d at 40. To implement that conclusion, the Court orders the reprogramming of MDTs in order to provide a police officer with information about the current status of a vehicle owner’s registration and driver’s license without making available to that officer any personal information about the vehicle owner. Ante at 56-57, 723 A.2d at 40-41. Regrettably, the Court undermines its own conclusion and dilutes the usefulness and clarity of its opinion when it permits police officers, pending completion of the MDT programming, to continue to use MDTs to make random, suspicionless look-ups of motorists’ personal information, in direct contravention of the Court’s interpretation of the controlling statutes. Although I am in substantial agreement with the Court’s disposition of this appeal, I write separately to express my disagreement with the Court’s unwillingness to hold unconditionally that random use of MDTs by police officers to obtain motorists’ personal information is impermissible conduct that violates N.J.SA 39:2-3.4(c).

I

The Court’s grant of certification in these consolidated appeals required it to consider only the question whether random police *60entry of motor vehicle license plate numbers into MDTs to gain access to the computerized databases of the New Jersey Division of Motor Vehicles (DMV) violates Article I, Paragraph 7 of the New Jersey Constitution. Although the Court’s opinion acknowledges and addresses that issue, ante at 51-52, 54-56, 723 A.2d at 38-39, 40-41, it stops short of deciding it, electing instead to treat the legality of police officers’ random use of MDTs primarily as an issue of statutory interpretation. Ante at 56-58, 723 A.2d at 40-42. That approach is consistent with this Court’s traditional policy of avoiding constitutional adjudications whenever legal issues presented can be resolved on non-constitutional grounds. See O’Keefe v. Passaic Valley Water Comm’n, 132 N.J. 234, 240-42, 624 A.2d 578 (1993).

The Court’s opinion describes the statutory context underlying its disposition. Ante at 52-55, 723 A.2d at 39-40. The Legislature has authorized the Director of DMV to “[cjollect such data with respect to the proper restrictions to be placed upon motor vehicles and their use upon the public roads, turnpikes and thoroughfares as shall seem for the public good.” N.J.S.A 39:2-3(c). Prior to 1997, except as otherwise provided by law all records required to be maintained by DMV constituted public records subject to the Right to Know Law, N.J.S.A. 47:1A-1 to -4. See N.J.AC. 13:18 — 11.3(a). In 1997, however, the New Jersey Legislature enacted legislation that sharply restricted access to personal information about motorists that had been compiled and accumulated by the DMV. L. 1997, c. 188. Codified at N.J.S.A. 39:2-3.3 and -3.4, the amendatory legislation was designed to comply with the federal Driver’s Privacy Protection Act, 18 U.S.C. §§ 2721-2725, which imposed significant restrictions on the authority of state motor vehicle departments to disseminate or disclose personal information concerning motorists, 18 U.S.C. § 2721, and authorized criminal fines on individuals and civil penalties of up to $5000 per day on any state department of motor vehicles whose practices were in substantial noncompliance with the Act. 18 U.S.C. § 2723. As the Court’s opinion relates, the federal act was passed by Congress in response to numerous *61incidents throughout the country involving violence, threats of violence and other criminal acts against victims whose home addresses had been obtained by inappropriate use of state motor vehicle records. Ante at 58, 723 A.2d at 39.

Directly responding to the concerns underlying the federal legislation, the Legislature enacted N.J.S.A 39:2-3.3 and -3.4. Section 3.3 defines “personal information” as follows:

“Personal information” means information that identifies an individual, including an individual’s photograph; social security number; driver identification number; name; address other than the five-digit zip code; telephone number; and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.

Section 3.4 prohibits, subject to other qualifying subsections, the DMV or its employees from disclosing “personal information” about any individual obtained by the division in connection with a motor vehicle record. N.J.S.A 39:2-3.4(a). The statute requires disclosure of personal information in connection with “matters of motor vehicle or driver safety and theft,” N.J.S.A 39:2-3.4(c), and permits disclosure of personal information “[f]or use by any government agency, including any court or law enforcement agency in carrying out its functions, or any private person or entity acting on behalf of a federal, State or local agency in carrying out its functions.” N.J.S.A 39:2-3.4(c)(l). That authorization of disclosure of personal information to government or law enforcement agencies tracks verbatim an identical authorization in the federal statute. 18 U.S.C. § 2721(b)(1). The question of statutory interpretation raised by these appeals is whether completely random, suspicionless use of MDTs by police officers to obtain both personal and non-personal information constitutes “use by [a] ... law enforcement agency in carrying out its functions.”

II

The record in these appeals demonstrates unequivocally that no reasonable suspicion or other specific facts precipitated the police officers’ MDT inquiries concerning these petitioners. Donis, a Latino, and Gordon, an African-American, were driving lawfully *62and properly in front of (Donis) or past (Gordon) a police officer on routine patrol in a police car. Neither officer observed any driving or equipment violations. Both officers entered the license plate numbers of the cars into their MDTs.

The arresting officer in Donis testified that he entered Donis’s license plate number in his MDT for “no articulable reason” other than “he just happened to be behind” Donis’s ear. He testified that he was not following any departmental instructions or law enforcement guidelines and that he typically conducts “random” MDT searches of cars in front of him if he is “not doing anything else.” The police officer in Gordon, who was parked at the side of the road, testified that, as he did that day, he was in the “habit” of conducting 200 or more random computer searches while on patrol. As the Court’s opinion explains, the MDT searches of Donis and Gordon disclosed to the respective police officers personal and non-personal information as defined in N.J.S.A. 39:2-3.3.

Without explanation, the Court concludes that in enacting N.J.S.A 39:2-3.3 and -3.4 the Legislature did not contemplate that those sections “would permit the random use of MDTs to secure ‘... personal information’ of motorists by police officers who had no reason to suspect wrongdoing.” Ante at 55, 723 A.2d at 40. Except for the testimony of the arresting officers, no evidence in the record illuminates our understanding concerning customary police department usage of MDTs. The briefs inform us that the State’s motion to the Appellate Division in Donis for a remand to establish an adequate evidentiary record was granted. We also are informed that on remand Donis unsuccessfully moved to compel discovery concerning the West Windsor Police Department’s use of MDTs during the prior year, and that Donis’s proffer of two female fact witnesses who would have testified about their experiences with two New Jersey municipal police officers who used MDTs to acquire personal information about them in pursuit of unwanted romantic interests was rejected by the trial court.

*63In my view, however, the statutory standard that limits police department use of MDTs to obtain personal information only to uses constituting the “carrying out [of law enforcement] functions” is a sufficient indication of legislative intent to demonstrate that random and suspieionless use of MDTs is not authorized. That interpretation of the statute is consistent with federal and state decisional law concerning the standards governing a police officer’s authority to make an investigatory stop. Our cases hold that “an investigatory stop is valid only if the officer has a ‘particularized suspicion’ based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing.” State v. Davis, 104 N.J. 490, 504, 517 A.2d 859 (1986). Accord State v. Citarella, 154 N.J. 272, 278-80, 712 A.2d 1096 (1998); State v. Arthur, 149 N.J. 1, 7-10, 691 A.2d 808 (1997); see also United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607, 618 (1975)(holding that “officers ... may stop vehicles only if they are aware of specific articulable facts, together with the rational inferences from those facts, that reasonably warrant suspicion that the vehicles” were involved in criminal activity); State v. Dickey, 152 N.J. 468, 475, 706 A.2d 180 (1998)(noting that “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred”)(quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95-96 (1996)); State v. Kirk, 202 N.J.Super. 28, 55, 493 A.2d 1271 (App.Div.1985) (invalidating roadblock, stop, and seizure of defendant, and holding that State must justify roadblock procedures and demonstrate substantial public benefit from road-block stops as well as appropriate control of discretion of officers operating roadblock).

Concededly, a suspieionless stop of a motor vehicle to obtain information from its occupants is an imperfect analogy to the suspieionless use of an MDT to obtain “personal information” concerning the vehicle and its owner. But the principle that prohibits investigative stops of motor vehicles absent suspicion of unlawful activity is consistent with an interpretation of the DMV statute recognizing that random and suspieionless use of MDTs to *64obtain personal information about the owners of lawfully operated motor vehicles is unauthorized. In each instance, the underlying rationale is the protection of law-abiding citizens from unreasonable police intrusions. That a motorist is unaware of a police officer’s random entry of his vehicle’s license plate number into an MDT to obtain personal information does not lessen the intrusiveness of the officer’s conduct.

Because the intrusion occasioned by the use of MDTs is less invasive than that resulting from a suspicionless seizure of a motor vehicle, I would find acceptable a standard less restrictive than reasonable suspicion of criminal activity to justify police use of MDTs. An obvious example might be a report of an unfamiliar vehicle parked in a residential neighborhood for several days, an occurrence that readily would justify resort to an MDT to obtain information about the vehicle and its owner. I would consider any police use of MDTs that reasonably was related to an appropriate law enforcement purpose to be consistent with the controlling statutory standard, adopted by both Congress and our Legislature, that permits disclosure of motor vehicle agency personal information to a “law enforcement agency in carrying out its functions.” 18 U.S.C. § 2721(b)(1); N.J.S.A. 39:2-3.4(e)(l). Random and suspicionless use of MDTs, however, constitutes not only an unproductive application of police resources but one that reflects only a marginal likelihood of advancing law enforcement objectives. Accordingly, I conclude, as does the Court, that a police officer who unilaterally makes random, suspicionless use of an MDT to obtain personal information about a motor vehicle’s owner is acting beyond his authority and is not “carrying out [the] functions of a law enforcement agency” -within the meaning of those statutes.

That conclusion compels me to disagree with the Court when, contradicting its own legal determination, it authorizes “law enforcement agencies throughout the State ... to randomly use MDTs for valid law enforcement reasons,” pending completion of the MDT reprogramming ordered by the Court. Ante at 58, 723 *65A.2d at 42. Obviously, use of MDTs for “valid law enforcement reasons” is authorized by statute and does not require additional authorization by the Court. If the Court is implying that all random uses of MDTs are for “valid law enforcement reasons,” its earlier conclusion that the Legislature did not authorize random use of MDTs to obtain personal information, ante at 56, 723 A.2d at 40, is undermined. The Court would better serve the public interest, and the interests of law enforcement, to hold unequivocally that random and suspicionless use of MDTs by police officers to obtain “personal information” is unauthorized.

One final observation: I would sustain these convictions despite my view that the police officers’ random use of their MDTs was impermissible. As the Court’s opinion explains, when the MDT gains access to the “DMV name” screen, that screen displays a code indicating whether the license or registration is suspended. That information does not constitute “personal information” under the statute, see N.J.S.A, 39:2-3.3, and it was the information that both petitioners’ driver’s licenses were suspended that led the officers to stop both vehicles. In short, although “personal information” also was revealed on the MDT screens, -that personal information did not give rise to the investigatory stops that resulted in the issuances of the summonses at issue in these appeals.

Justice STEIN concurs in result.

For affirmance — Chief Justice PORITZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI, COLEMAN and STEIN — 7.

Opposed — None.