New Jersey Criminal and DWI Lawyer & Attorney : John Marshall Law Firm : Drunk Driving, DUI : Monmouth County, Middlsex County, Union County, New Jersey

N.J.S.A. 39:3-74 provides that New Jersey registered motor vehicles may not be driven with non-transparent materials affixed to the windows or lights. This concerns all the vehicles with tinted windows on the front driver's side or passenger's side. Based on this statute, New Jersey police conducted motor vehicle stops based on the presence of tinted windows on the vehicles. In State v. Cohen, 347 N.J. Super 375 (App. Div. 2002), the Appellate Division held that the statute in question does prohibit the use of tinted windows that fail to meet certain standards set forth in the New Jersey Administrative Code. The Appellate Division also concluded that the motor vehicle stop in Cohen could be justified under the community caretaking exception. The darkened windows of the vehicle were subject to inspection by the officer in order to determine if the equipment constituted a hazardous condition. Also, the traffic stop in Cohen was also justified under the common law right of inquiry, in that the officer had a reasonably-founded suspicion that the vehicle's equipment constituted a violation of the motor vehicle statute.

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In general, a police initiated stop of a motor vehicle may be legally justified by three principles of law under both the Fourth Amendment to the US Constitution and Article I, paragraph 7 of the New Jersey Constitution. First, a New Jersey police officer is entitled to conduct a traffic stop when the officer has a reasonable suspicion that the driver has committed a violation of the motor vehicle laws. Such suspicion may be based upon objectively reasonable evidence that the driver has committed a moving violation or that the vehicle is being operated in violation of the licensing, equipment, or registration laws of the State. The evidence supporting the traffic stop need not be sufficient to support a conviction and does not need to be based upon probable cause. All that is required is reasonable suspicion.

A second justification for a motor vehicle stop in New Jersey is the community caretaking exception to the warrant requirement. This exception, which I have previously discussed in various articles, essentially allows the police to stop a motor vehicle when there is objectively reasonable evidence for the police officer to conclude that something may be wrong with the vehicle or the driver.

A third justification for a traffic stop is based on New Jersey common law: Police have the right and obligation to effect a motor vehicle stop and inquire of a vehicle's occupants when the police have objectively reasonable evidence to suggest that criminal activity is being planned or conducted.

The Chief Administrator of the Motor Vehicle Commission in New Jersey has been given the authority to create rules and regulations controlling the necessary equipment to be used on motor vehicles that are registered in NJ. All vehicles that are registered in this State must be properly equipped at all times. When a vehicle is not so equipped, it is in violation of the law and becomes subject to a motor vehicle stop by the police based upon one of the three reasons I just discussed. However, if a police officer effects a motor vehicle stop based upon a perceived violation for an equipment issue that does not actually exist, the stop is not justified under any theory as being objectively reasonable. The police officer's good faith and subjective belief that he or she witnessed a violation are essentially irrelevant.

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The United States Supreme Court has authorized exterior searches for vehicle identification numbers (VIN). This issue was analyzed in New York v. Class, 475 U.S. 106 (1986). In this case, New York City police officers stopped a vehicle for speeding. The vehicle also had a cracked windshied which is a violation of New York law. The defendant exited the vehicle and provided the police with proof of registration and insurance but no driver's license.One of the officers involved in the stop opened the door to examine the VIN, which was located on the left doorjamb of the vehicle. When the officer did not find the VIN there, he reached into the interior of the car in order to move some papers that were obstructing the area of the dashboard where the VIN is located on late model automobiles. When the officer did so, the officer saw the handle of a gun protruding from under the driver's seat. The weapon was immediately seized and the defendant was arrested.

The Supreme Court held that the VIN is a vital component in the regulation of automobiles. As such, motorists should expect a substantially diminished expectation of privacy in the VIN numbers to their vehicles. This is especially true of a driver who has committed a traffic violation. Since the VIN is generally accessible and visible from the exterior of the vehicle, an examination may not even constitute a search. Since there is no expectation of privacy in the VIN, no showing of probable cause or reasonable suspicion of a violation of law is necessary for an examination from the exterior of the vehicle for this number. The Supreme Court found that it makes no difference that papers in the defendant's car obscured the VIN number from plain view. The Court held that efforts to restrict access to a particular area do not generate a reasonable expectation of privacy where none would otherwise exist.

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Many police vehicles have computers now known as mobile data terminals (MDTs). These laptop sized computers permit the officer to perform rapid searches of law enforcement databases. In addition to information concerning active criminal and traffic warrants, the MDT also provides basic information about motorists. By typing in the license plate number, the MDT provides information concerning vehicle registration and whether the owner of the vehicle is legally licensed to drive in New Jersey.

The question arises whether a MDT report of a problem with the vehicle registration or the owner's driver's license constitutes a sufficient legal justification to effect a motor vehicle stop. The New Jersey Supreme Court answered this question in State v. Donis, 157 N.J. 44 (1998). The court held that motorists have no expectation of privacy in their license plates or associated numbers. The plates are always located on the outside of the vehicle and must be easily viewable. On the other hand, there is an expectation of privacy with regard to information associated with the license plate number. Data such as the home address, social security number, and name of the owner of the vehicle are protected by both state and federal law.

In order to balance these competing interests, the New Jersey Supreme Court in Donis created a two step process to be performed by law enforcement. Police are permitted to randomly enter license plates numbers into the MDT. The system will report back basic information regarding the registration status of the vehicle, the driver's license status of the owner, and whether the vehicle has been reported lost or stolen. Other personal information about the owner may not be displayed in the first step. If the data received during the first step warrants further investigation (because the vehicle is not registered or the owner's license is suspended), the police are permitted to access personal information through the MDT. This may include the owner's name and address, social security number, and criminal record. The Supreme Court has ordered that when the police do not receive evidence of problems with the vehicle or the driver, they may not proceed to step two and access personal information.

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Now that we have examined the requirements of a consent search in New Jersey, we must now consider the scope of the consent search once consent is validly given. A police officer conducting a motor vehicle search by consent may search the vehicle as thoroughly as if he or she had a search warrant within the confines of the consent. State v. Santana, 215 N.J. Super 63 (App. Div. 1987). The person granting consent may limit the search both in terms of area and time. Florida v. Jimeno, 500 U.S. 248 (1991). The consent to search may also be withdrawn at any time by the person so consenting. However, should the officer uncover something during the course of a consent search, which gives the officer probable cause to believe evidence of a crime or contraband can be found in the vehicle, the search may continue under the automobile exception to the warrant requirement which I have previously discussed.

If the consent gives the officer permission to search the trunk of the vehicle, the trunk may be searched. However, it must be explicitly understood between the officer and the person giving consent that a search of the trunk is within the scope of the consent given. In State v. Leslie, 338 N.J. Super 269 (App. Div. 2001), the search of the defendant's trunk was not explicitly stated in the consent and the drugs recovered from the trunk during the search were suppressed. An express, valid consent may also permit the search of closed containers and other areas not easily accessible in the vehicle.

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The State is required to prove two elements during a hearing on a motion to suppress evidence, where the issue is one of consent. First, the State must prove by clear and convincing testimony that consent was freely, knowingly, and voluntarily given. This evidence should include proof that the defendant knew that he or she had the right to refuse to grant consent for the search. This can be shown through a written consent to search form, video evidence, or direct testimony from the police officer. The proofs only require knowledge to refuse consent on the part of the defendant, not that the police actually informed the defendant of this important right.

The second element of proof in the motor vehicle context is the requirement that the police justify the reason they sought consent to search in the first place. The request must be based upon a reasonable and articulable suspicion that evidence of a crime or contraband could be found within the motor vehicle. This can be proven through direct or circumstantial evidence. The conclusions made by the officer at the time of the request for consent must be based on a totality of the circumstances. The information available to the officer and the rational inferences to which they create must lead the officer to suspect that criminal evidence exists in the vehicle. Absent clear proofs on both of these issues, the incriminating evidence that was obtained through a consent search must be suppressed.

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New Jersey law differs significantly from federal law on the issue of motor vehicle searches undertaken by consent of the driver. Article 1, paragraph 7 of the New Jersey Constitution provides more protection to individuals than the comparable provisions of the 4th amendment to the US Constitution.

In Schneckloth v. Bustamonte, the US Supreme Court ruled that when a subject of a search is not in custody and the prosecutions seeks to justify the search on the basis of the subject's consent, the 4th and 14th Amendments to the US Constitution require that the State demonstrate that the consent was voluntarily given. The State must also show that the consent was not the product of threats, coercion, or duress. While the subject's knowledge of his or her right to refuse consent is a factor that the court may consider on the issue of voluntariness, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.

This is not the law in New Jersey. Under our state constitution, the prosecution must prove not only the voluntary nature of the consent, but also that the defendant knew of his or her right to refuse to give consent to the search.

Furthermore, in the motor vehicle context, there is an additional requirement that must be met under New Jersey law. In order to seek the consent of a subject to conduct a search of a motor vehicle during a routine traffic stop, the law enforcement officer must have at least an articulable suspicion that evidence of a crime or a contraband may be found in the vehicle. This additional requirement in the motor vehicle context is also a product of an appellate decision interpreting Article I, paragraph 7 of the New Jersey Constitution to provide greater protection against unreasonable searches and seizures than the 4th amendment provides.

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Central to the court's analysis in State v. Smith, 134 N.J. 599 (1994), was the fact that normally a passenger will not have committed any motor vehicle violation. Of course, this may not always be the case. There are numerous violations that passengers can commit. For example, failure to wear a seatbelt while seated in the front of a motor vehicle constitutes a violation of New Jersey law. In a similar manner, passengers may be liable under the motor vehicle laws when they, as licensed drivers, permit the operation of a motor vehicle by a person under the age of 17 with an examination permit. Passengers can also be liable for permitting intoxicated drivers to operate a motor vehicle that is either owned or within the custody or control of the passenger. In fact, a passenger who permits his or her motor vehicle to be operated without liability insurance is strictly liable under the state's compulsory insurance laws.

In those cases in which the passenger has actually committed a motor vehicle offense themselves, it seems that the investigating officer has the power to lawfully order them to exit the vehicle under the Mimms analysis. This was the holding in State v. Legette. This was decided three months after the New Jersey Supreme Court's decision in Smith, and the court decided that the police could order a passenger to exit a vehicle where he was about to receive a ticket for failure to wear a seatbelt. State v. Legette, 274 N.J. Super 278 (1994). Under the court's reasoning in Legette, a police officer may order passengers to exit a vehicle whenever the passenger has independently violated a provision of the motor vehicle or criminal laws.

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The New Jersey Supreme Court considered whether the Mimms rule applied to passengers in New Jersey as well in State v. Smith, 134 N.J. 599 (1994). The Court found that ordering a passenger out of a vehicle is different from ordering a driver to get out of the vehicle because the passenger has not engaged in the culpable conduct that resulted in the vehicle stop. The court found that an order to exit a vehicle during the course of a routine motor vehicle stop constitutes a greater intrusion on the passenger's liberty than on the driver's. Because the passenger has not normally engaged in an obvious violation of the law, he or she has a legitimate expectation that no further inconvenience will occur other than the delay of a lawful stop of a driver. Accordingly, the court recognized a distinction between the privacy expectations of passengers and drivers and found that the passenger's privacy interest is greater than that of the driver. The Court ruled that in order for an officer to require a passenger to exit a motor vehicle during a lawful stop, the officer must be able to identify specific and articulable facts that would warrant heightened caution to justify ordering passengers out of a vehicle detained for a traffic stop. The officer needs to establish some facts considered in the totality of the circumstances that would create a heightened awareness of danger for the officer.

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There is a distinction in New Jersey between orders by a law enforcement officer for operators and passengers of a vehicle to exit the vehicle during a motor vehicle stop. With respect to operators of a motor vehicle, New Jersey follows the federal position that police are free to use their discretion to order a driver from the vehicle during the course of a motor vehicle stop. This comes from the federal case of Pennsylvania v. Mimms, 434 U.S. 106 (1977). Critical to this United States Supreme Court decision is the concerns for issues of officer safety during traffic stops. Weighing the potential for death or bodily injury to police during traffic stops against the inconvenience to motorists, the court found that the intrusion can only be described as de minimis (minimal). Essentially, this decision creates a bright line rule that police may require drivers to exit their vehicles during a motor vehicle stop without any justification.

With respect to drivers, the New Jersey Supreme Court has found this decision to be consistent with the New Jersey Constitution. In State v. Smith, the court that that the Mimms test is constitutional under the New Jersey Constitution. State v. Smith, 134 N.J. 599 (1994). The Court adopted the reasoning of the USSC and found that, in contrast to the minimal intrustion on a person's privacy, a police officer's safety is greatly enhanced when an officer can order a driver out of the car.

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