STATE OF NEW JERSEY v. STEPHEN McMAHON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN McMAHON,

Defendant-Appellant.

_____________________________

November 21, 2014

Submitted September 30, 2014 Decided

Before Judges Reisner and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-032.

Hunt, Hamlin & Ridley, attorneys for appellant (Raymond L. Hamlin, of counsel and on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Stephen McMahon, appeals his second conviction for driving while intoxicated in violation of N.J.S.A. 39:4-50, as well as his third conviction for driving while suspended in violation of N.J.S.A. 39:3-40. We affirm for the reasons set forth in the well-reasoned opinion of Judge Mary Gibbons Whipple.

Defendant was arrested shortly after 3:00 a.m., after a police officer observed him in a hotel parking lot moving his vehicle from one spot to another. Officer Joseph Quinn testified he was doing a routine check of the parking lot of a hotel where there had been several recent criminal activities, including stolen motor vehicles. The officer ran the defendant's license plate through a Mobile Data Terminal (MDT). The license plate search revealed that the vehicle was unregistered, and that the owner's license was suspended. The officer stopped and questioned defendant after he got out of his vehicle. Defendant refused to produce his credentials and he was arrested.

Defendant filed a motion in the Hanover Township Municipal Court challenging whether the officer had probable cause for the stop. A probable cause hearing was held in the municipal court. Defendant had requested in discovery a copy of a printout of the MDT search, and was advised none existed. The officer testified at the hearing that he had no documentation of the search, but there was a record kept of all license plates run by him. Detective Salvatore Siino, also of the Hanover Police Department, testified that the department did not maintain any record of MDT searches, and had never maintained such records. The court adjourned the hearing to allow defense counsel, and the State to try to obtain records from other sources.

On the next date of the hearing, which was nearly eight months later, defense counsel advised the court he had subpoenaed the out-of-state company that services the MDT computer searches, and was advised they had no records to produce. The prosecutor produced a document from an unidentified entity known as "Bio Key" that showed an NCIC check was run on the defendant's license plate at 3:05 a.m. on the date of the arrest. This document was marked for identification.

At the conclusion of the third day of the hearing, Judge O'Toole found there was probable cause to stop and then arrest the defendant. He found it was not required that the State produce documentation of the MDT search and that the officer's testimony that he conducted the search, and then approached defendant after finding the vehicle was unregistered and the owner's license was suspended was credible.

Subsequently, an agreement was reached where defendant would plead guilty if he had the opportunity to appeal to the Superior Court the denial of his motion. Judge Whipple, having reviewed the transcript and the papers filed by counsel, found in a trial de novo that there was probable cause for the stop. Defendant now appeals from that decision. We affirm substantially for the reasons set forth in Judge Whipple's opinion. Her comprehensive opinion sets forth the facts and more thoroughly reviews the testimony, and we need not repeat those details in this opinion. Having reviewed the record, we conclude that Judge Whipple's opinion is supported by sufficient credible evidence and is consistent with applicable law. See State v. Locurto, 157 N.J. 463, 471 (1999).

The legal issue presented is whether the police officer was required to present documentary proof that he had run an MDT license plate search prior to the stop. In that regard, defendant challenges whether the officer in this case ran the MDT search, learned of defendant's suspended driver's license and unregistered vehicle prior to the stop, and whether he complied with the holding of State v. Donis, 157 N.J. 44 (1998).

Our Supreme Court in Donis, supra, 157 N.J. at 57-58, adopted a two-step process to balance a person's privacy interests with the State's interest in highway safety. In this process, the MDT would first display information showing only the registration status of the vehicle, the license status of the owner, and whether the vehicle was reported stolen. The police officer could only access the more personal information about the owner, including his criminal record, if the original inquiry disclosed a basis for additional police action.

Defendant argues that documentary proof was required in this case to assure compliance with the Donis procedure. We disagree. The local police department here did not routinely obtain a printout of the MDT search. The MDT information was displayed on a screen and the officer did not have the ability to print it out in his vehicle. The municipal court judge found the officer credible when he testified that the vehicle was in an area where there had been several stolen vehicle reports, so he ran the defendant's vehicle's plates through the MDT which gave him probable cause to stop the defendant. Defendant acknowledges that police can secure a computer check on a license plate without any prior suspicion. State v. Pitcher, 379 N.J. Super. 308, 314-15 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).

The officer testified he based the stop on the non-private information he received from the MDT search. As the officer testified, operating an unregistered vehicle was by itself a violation of the law. Judge Whipple accepted the testimony as credible and properly found defendant's motion to be without merit. She properly found defendant's motion to be without merit. Under the circumstances of this case, the State was not required to produce an MDT printout to prove its case. Defendant's arguments premised on Donis do not warrant further discussion. R. 2:11-3(e)(2).

Affirmed.