STATE OF NEW JERSEY v. DARIUS X. EL-BEY a/k/a OTIS CLINTON

 

NOT FOR PUBLICATION WITHOUT THE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.

DARIUS X. EL-BEY,

a/k/a OTIS CLINTON,

Defendant-Appellant.

____________________________________

March 10, 2016

 

Argued November 10, 2015 Decided

Before Judges Reisner and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-07-0739.

Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the briefs).

Garima Joshi, Volunteer Attorney, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Teresa A. Blair, Deputy Attorney General, of counsel and on the brief; Ms. Joshi, on the brief).

PER CURIAM

Defendant, known as Darius X. El-Bey and Otis Clinton, appeals from the denial of his motion to suppress a handgun found during a warrantless search of the glove compartment of his vehicle. We affirm.

I.

The following facts were elicited at the suppression hearing. At approximately 11 p.m. on April 11, 2010, defendant was stopped for speeding by Linden Police Department Officer Christopher Guenther. After approaching the vehicle, Guenther requested defendant's license, registration, and proof of insurance. Defendant responded that he lived in Rahway and that the vehicle belonged to his wife. Defendant then handed Guenther "an unofficial homemade book" entitled "right to travel documents for Darius Xavier El-Bey." Defendant stated that "it was his right-to-travel documents and [that] he was claiming diplomatic immunity." Guenther testified that the book contained a birth certificate and documents that stated "[defendant] was not a driver" and that the "vehicle was not a motor vehicle because it was not involved in commerce and therefore he was not subject to the laws of the state." Guenther testified that he suspected these documents were fraudulent, so he radioed for an officer familiar with immigration documents to report to the scene.

While waiting for assistance, Guenther inputted the vehicle's license plate into his police cruiser's on-board computer. The computer displayed that the vehicle was owned by Cheri Minter, that it had not been reported as stolen, and that it was registered to an address in Elizabeth, not Rahway.

Guenther further attempted to verify that defendant was licensed to drive by requesting the Police Department's central dispatch to perform a records search. Central dispatch could not find a driver's license for Darius El-Bey. However, defendant's "right to travel" documents contained a date of birth and social security number which central dispatch confirmed belonged to "Otis Clinton."

The computer displayed Otis Clinton's driver's license photo, which looked exactly like defendant. The computer also revealed that Clinton had several warrants for his arrest. When confronted with this information, defendant denied it, "became combative and uncooperative," and refused to leave his vehicle. Guenther and two other officers then removed defendant from the car and arrested him on the warrants.

Once defendant was placed in the police cruiser, Officer Perez, who had arrived on the scene, approached the vehicle and searched the glove compartment for the vehicle's registration and insurance cards. Simultaneously, Cheri Minter arrived on the scene. She claimed she was defendant's wife.1 Less than a minute after Officer Guenther began speaking with Minter, Officer Perez informed him that a handgun had been found in the glove compartment.

Defendant was charged with unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)2; and receiving stolen property, namely a handgun, N.J.S.A. 2C:20-7. Judge Stuart L. Peim issued an order and oral opinion denying defendant's motion to suppress the handgun found in the glove compartment. The court credited Officer Guenther's testimony. The court found that after the officer requested the registration and insurance cards, and defendant instead handed only the "right to travel documents for Darius Xavier El-Bey," Supreme Court case law authorized an officer to enter the vehicle and look for the registration and insurance cards in the glove compartment, where the officer inadvertently found a handgun which he then seized.

Defendant then entered into a plea agreement. Pursuant to that agreement, the trial court dismissed the receiving stolen property charge, and sentenced defendant to five years in prison with three years of parole ineligibility on the second-degree weapons charge.

II.

Defendant appeals his October 31, 2013 judgment of conviction. He argues

THE POLICE HAD NO LEGITIMATE REASON TO ENTER THE GLOVE COMPARTMENT TO SEARCH FOR EVIDENCE OF OWNERSHIP BECAUSE THEY HAD ALREADY DETERMINED THE DRIVER'S IDENTITY AND ARRESTED HIM, AND THROUGH THEIR ELECTRONIC RECORDS, THEY HAD DETERMINED THE NAME OF THE CAR'S OWNER, THAT THE CAR WAS VALIDILY REGISTERED, AND THAT IT WAS NOT REPORTED STOLEN.

We must hew to our standard of review. "'[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Those findings warrant particular deference when they are "substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Elders, supra, 192 N.J. at 244). The suppression court's "findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." Ibid. (quoting Elders, supra, 192 N.J. at 244). A trial court's interpretation of the law, however, "is 'not entitled to any special deference,' and its 'legal conclusions are reviewed de novo.'" State v. Sorensen, 439 N.J. Super. 471, 486 (App. Div. 2015) (quoting State v. Gamble, 218 N.J. 412, 425 (2014)).

III.

"'It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Locurto, 157 N.J. 463, 470 (1999) (citation omitted). Here, it is undisputed that Officer Guenther lawfully stopped defendant based on reasonable suspicion that he was speeding.

It is equally well-established that an officer conducting a traffic stop may request a driver to produce his driver's license, vehicle registration, and proof of insurance. See, e.g., State v. Baum, 393 N.J. Super. 275, 286 (App. Div. 2007), aff'd as modified, 199 N.J. 407, 424 (2009); see also Delaware v. Prouse, 440 U.S. 648, 659, 99 S. Ct. 1391, 1399, 59 L. Ed. 2d 660, 671 (1979) (emphasizing that in "[v]ehicle stops for traffic violations[,] . . . licenses and registration papers are subject to inspection").

Under N.J.S.A. 39:3-29, defendant was required both to have these documents in his possession and to produce them when requested by a police officer performing his duties. State v. Perlstein, 206 N.J. Super. 246, 253 (App. Div. 1985). N.J.S.A. 39:3-29 provides, in pertinent part

The driver's license, the registration certificate of a motor vehicle and an insurance identification card shall be in the possession of the driver or operator at all times when he is in charge of a motor vehicle on the highways of this State.

The driver or operator shall exhibit [that documentation] . . . when requested to do so by a police officer [.]

The Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution both provide that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," and that no warrant shall issue except on probable cause. U.S. Const. amend. IV; N.J. Const. art. 1 par. 7. However, there are exceptions allowing warrantless searches under the New Jersey and Federal Constitutions.

One such exception is the automobile exception, under which our Supreme Court has permitted the warrantless search of a vehicle where unforeseeable and spontaneous circumstances give rise to probable cause and there is some degree of exigency. State v. Pena-Flores, 198 N.J. 6, 28 (2009) (requiring that "exigent circumstances exist under which it is impracticable to obtain a warrant"); see State v. Witt, 223 N.J. 409, 423-25, 427, 450 (2015) (prospectively overruling this requirement of Pena-Flores, and requiring no exigency beyond "the inherent mobility" of the vehicle).

"[S]eparate and apart from the automobile exception," our Supreme Court has repeatedly recognized another exception permitting a limited warrantless search of a vehicle to uncover proof of ownership or insurance. Pena-Flores, supra, 198 N.J. at 31. Under this "driving documents" exception, "[i]f the vehicle's operator is unable to produce proof of registration, the officer may search the car for evidence of ownership." State v. Keaton, 222 N.J. 438, 448 (2015) (citing State v. Boykins, 50 N.J. 73, 77 (1967)); accord Pena-Flores 198 N.J. at 31; State v. Patino, 83 N.J. 1, 12 (1980); State v. Gammons, 113 N.J. Super. 434, 437 (App. Div.), aff d o.b., 59 N.J. 451 (1971); State v. Hock, 54 N.J. 526, 533 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).3

Our Supreme Court has explained that "a traffic violation may justify a search for things relating to that stop." Keaton, supra, 222 N.J. at 448 (citing Boykins, supra, 50 N.J. at 77). "Such a search must be reasonable in scope and tailored to the degree of the violation." Id. at 448-49 (quoting Patino, supra, 83 N.J. at 12). "A search to find the registration would be permissible if confined to the glove compartment or other area where registration might normally be kept in a vehicle." Id. at 449 (quoting Patino, supra, 83 N.J. at 12); accord Pena-Flores, supra, 198 N.J. at 31 (upholding such a search).

Before conducting such a "limited search," the police are "required to provide [the] defendant with the opportunity to present his credentials before entering the vehicle. If such an opportunity is presented, and the defendant is unable or unwilling to produce his registration or insurance information, only then may an officer conduct a search for those credentials." Keaton, supra, 222 N.J. at 442-43 (applying the exception in a one-car accident situation, but finding that the officer failed to ask the defendant for his credentials).

Here, there was ample justification for the officer's limited search of defendant's glove compartment for the required driving documents for the vehicle. After being pulled over defendant failed to provide his license, registration, and/or proof of insurance despite being given the opportunity to do so. Instead, he provided homemade, fraudulent "right to travel documents" and claimed diplomatic immunity. As the trial court found, defendant's failure to provide the registration and insurance cards was "a traffic violation" which entitled the officer "to look into the areas in the vehicle in which evidence of ownership might be expected to be found." Pena-Flores, supra, 198 N.J. at 31 (citing Boykins, supra, 50 N.J. at 77). In particular the search would show whether defendant had the registration in his possession "at all times when he is in charge of a motor vehicle," as required by N.J.S.A. 39:3-29.

In addition, defendant disclaimed ownership of the car, claiming he was driving "his wife's car." Upon speaking to defendant and checking the on-board computer, Officer Guenther confirmed that defendant was not the owner of the vehicle, he did not live in the same town as the owner of the vehicle, that he did not give the officer his real name, and that he had several warrants out for his arrest. Moreover, he became combative and resisted the officers. Thus, the officers were more than justified in the looking in the glove compartment for proof of ownership.

A search for the registration and insurance cards was further justified by the simultaneous arrival of Minter. At the suppression hearing, Minter testified that upon arriving at the scene she informed Officer Guenther that she was the owner of the vehicle, but she did not produce any proof of her identity, or the registration or insurance cards. Minter further testified that the vehicle's registration card and insurance card were normally in the vehicle's glove compartment or ashtray, and that defendant knew they would be there. Minter's testimony further supported the officer's limited search of the vehicle for proof of ownership and insurance to determine if she was, in fact, the owner of the vehicle, and to ascertain the presence in the vehicle of the registration and insurance cards that were required before police could allow her to drive the vehicle.4

Defendant argues that there was no need to search the vehicle for registration and proof of insurance because the police could and did retrieve the vehicle's ownership information through the police cruiser's on-board computer without retrieving the physical documents. Such an on-board "mobile data terminal (MDT) consists of a screen and keypad that are linked to the computerized databases of the New Jersey Division of Motor Vehicles (DMV)." State v. Donis, 157 N.J. 44, 46(1998). "When an officer enters a vehicle's license plate number" in the MDT, it shows "the expiration date of the registration for that vehicle; the status of the vehicle, including whether it has been reported stolen; the registrant's name, address, date of birth, and driver's license number; the year, make, model, license plate number, and color of the vehicle; [and] the vehicle identification number." Id. at 46. Other inquiries can produce other information about whether the registration is suspended, and information about driver's license. Id. at 47.

Defendant argues that given the advent of MDT technology in the 1990s, older cases such as Boykins are no longer good law. Defendant's argument is contrary to our Supreme Court's reaffirmation of this exception as recently as 2015. Keaton, supra, 222 N.J. at 448. Moreover, the Supreme Court has applied the driving documents exception even though other technology similarly enabled the officer to obtain vehicle ownership and registration information without actually seeing the registration card. Pena-Flores, supra, 198 N.J. at 15-16, 31 (finding the exception applied even though the officer used the radio to obtain a "lookup" of the vehicle's ownership information from the dispatcher). As the Court noted in Donis, "[p]rior to the installation of MDT terminals in patrol cars, law enforcement officers had access to the same information as is available from the MDT. Access to that information, however, was provided by the dispatcher over police-band radio rather than in vehicle terminals." Donis, supra, 157 N.J. at 48.

Most importantly, New Jersey law requires that the physical registration certificate "shall be in the possession of the driver or operator at all times when he is in charge of a motor vehicle on the highways of this State." N.J.S.A. 39:3-29. Therefore, the presence or absence of the physical registration card remains relevant, and a search for it remains permissible, regardless of the information available on the on-board computer.5

The driving documents exception is "well-established" and widely-recognized. Hill, supra, 217 N.J. Super. at 628; see Wayne R. LaFave, Search and Seizure 7.4(d) at 870-72 (5th ed. 2012) (terming the exception "the better view"); see also United States v. Kelly, 267 F. Supp. 2d 5, 13 (D.D.C. 2003) (noting "[t]he state courts of New Jersey have adopted a sagacious approach to the issue"). Defendant has shown no basis to disturb this "settled law." Keaton, supra, 222 N.J. at 450.6

Defendant cites State v. Hill, 115 N.J. 169 (1989), but that case concerned an unoccupied car that was safely but illegally parked. Id. at 176-77. The Court invalidated an officer's search of the car for ownership information, noting that "[f]or this garden-variety parking violation there was no need to ascertain the identity of the owner: the officer need simply have placed a summons on the vehicle, as happens every day." Id. at 177 (citation omitted).

Moreover, in Hill the State did not invoke, and the Court did not discuss, the driving documents exception. In rejecting the State's argument under the "community caretaking" doctrine, the Court made clear it implied "no view of the applicability of any other theory on which the entry into defendant's automobile might be justified." Id. at 177-78 (emphasis added).

Defendant also cites our opinion in State v. Lark, 319 N.J. Super. 618 (App. Div. 1999), aff'd o.b., 163 N.J. 294 (2000). In Lark, the passenger in a vehicle "promptly handed the officer a valid registration, insurance card, and his own driver's license." Id. at 621. We found that a search of the vehicle for proof of the driver's identity was unreasonable because the driving documents exception did not apply to searches for proof of identity. Id. at 624-25.

Because Lark did "not involve a registration search," our discussion questioning Boykins was admittedly dictum. Id. at 623-26. Our dictum in Lark has been superseded by the Supreme Court's subsequent decisions in Pena-Flores and Keaton. In particular, the court in Pena-Flores held that an officer "was entitled, separate and apart from the automobile exception, to look into the areas in the vehicle in which evidence of ownership might be expected to be found" for evidence of the traffic violation itself. Pena-Flores, supra, 198 N.J. at 31 (citing Boykins, supra, 50 N.J. at 77).

Defendant does not dispute that once the officer opened the glove compartment and saw the handgun, he was justified in seizing it "'under the well-recognized "plain view" exception to a warrantless seizure of property under the Fourth Amendment.'" State v. Bruzzese, 94 N.J. 210, 235-36 (1983) (citation omitted), cert. denied, 465 U.S. 1036, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Defendant's remaining arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 Minter later testified that she and defendant were in a relationship and had a son together, but were never married.

2 The indictment mistakenly stated this was a crime of the third degree, but the trial court amended the indictment to show it was a crime of the second degree.

3 We have repeatedly recognized this exception. E.g., State v. Dickey, 294 N.J. Super. 619, 625 (App. Div. 1996), rev'd on other grounds, 152 N.J. 468 (1998); State v. Holmgren, 282 N.J. Super. 212, 215 (App. Div. 1995); State v. Hill, 217 N.J. Super. 624, 628-29 (App. Div. 1987), rev'd on other grounds, 115 N.J. 169 (1989); State v. Jones, 195 N.J. Super. 119, 122-23 (App. Div. 1984).

4 Moreover, Minter testified that she observed defendant trying to get her attention from the back seat of the police cruiser by motioning to her to "let [the police] know that [his] weapon [was] in the car." Minter testified that she told the police that defendant had a weapon in the car simultaneously with the discovery of the handgun.

5 Moreover, nothing in the record indicates that the computer provided information on whether the vehicle was insured.

6 In any event, "[a]s an intermediate appellate court, we are bound to follow and enforce the decisions of our Supreme Court[.]" State ex rel. A.C., 424 N.J. Super. 252, 254 (App. Div. 2012).