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By: Bob Bianchi
Partner The Bianchi Law Group, LLC
© 2019
For some time now, NJ defense attorneys have been complaining about a police practice of pulling motorists over for partially “obstructed” license plates. Many attorneys have felt this was merely a “pretext” stop, done to really look into criminal activity when they did not have probable cause.
And, many NJ defense attorneys complained that tickets for “obstructions” of license plates leading to citations were so minor as to be unfair. For example, many officers are trained that a license plate frame that ever so slightly touches upon any lettering of the license plate is a violation of N.J.S.A 39:3-33 which is the law prohibiting the “concealment” or “obscuring” of the license plate.
This issue has finally reached the NJ Appellate Division who recently rendered a groundbreaking case entitled: STATE OF NEW JERSEY, Plaintiff-Respondent, v. MIGUEL A. ROMAN-ROSADO, a/k/a MIGUEL ROMAN, DAMIAN ROSADO, MIGUEL A. ROMAN, and MIGUEL A. ROSADO, Defendant-Appellant.
In this case, although one could clearly read “Garden State” on the license plate, it was ever so slightly blocked by the license plate frame. This was the sole basis of the stop, in which police officers admitted that they were engaging in the practice of a “ proactive detail” – meaning officers would look for minor traffic code violations and try to “develop criminal investigations from that.”
In this case, the sole basis of the stop was the violation of N.J.S.A 39:3-33. The defendant was then asked to exit the car. The officer noticed something in the car that looked unusual and seized the item, finding that it was a firearm that was concealed within the car. The defendant was arrested for the unlawful possession of a gun and for being a “certain person” not allowed to carry a firearm in the State of New Jersey.
After the defense lost arguments to suppress the gun at the trial court level, the defendant entered into a plea of guilty. However, his defense lawyers argued that the lower court erred in the suppression ruling and appealed it to the New Jersey Appellate Division.
The appellate court framed the legal issues as follows:
“(1) Whether there was reasonable suspicion to stop the car for violating N.J.S.A. 39:3-33, because the license plate frame on the car’s rear license plate “conceal[ed] or otherwise obscure[d]” the words “Garden State” at the bottom of the license plate; and (2) whether the subsequent search and seizure of the handgun was legally permissible. Having considered the record and applicable law, we conclude there was no reasonable suspicion to stop defendant for violating N.J.S.A. 39:3-33, and thus the seizure of the gun is inadmissible to prove a second-degree certain persons offense. Even if there was reasonable suspicion to stop defendant’s car, the search did not satisfy the warrant exceptions of the automobile exception, a search incident to arrest, or protective sweep. Accordingly, we reverse and vacate the conviction for second-degree certain persons not to possess weapons, and remand so defendant can move to vacate his guilty plea.”
The court ruled that 39:33-3 did not find it a violation of law when a license plate frame that makes minimal contact with lettering a violation of the law. This is a very big win for defense attorneys in New Jersey who have been frustrated by the police using motor vehicle laws like this to pull over citizens, especially when the real reason they are doing it is to randomly investigate people for crimes where they do not have probable cause otherwise.
The court also addressed the right of police to search a car even in the event the stop was legal. Firstly, it should be noted, that warrantless searches are illegal unless they fall into narrow exceptions. One of those exceptions is the “automobile exception.” But even though this is an exception to getting a warrant, it is not limitless.
The court stated: “This exception authorizes a law enforcement officer to conduct a warrantless on-scene search of a motor vehicle only when there is probable cause to believe the vehicle contains contraband or evidence of an offense, and circumstances giving rise to this probable cause are “unforeseeable and spontaneous.” State v. Witt, 223 N.J. 409, 447 (2015).”
In this case, the court found that there was no probable cause established that would allow the officer to enter into the motor vehicle believing evidence of a crime would be uncovered.
Another aspect of the “automobile exception” is the permitted police practice of a “protective sweep” of the interior of a car by the police when there is “reasonable suspicion” that “a driver or passenger is dangerous and may gain immediate access to weapons. State v. Gamble, 218 N.J. 412, 431-32 (2014).”
With this exception, however, the court looks at the “totality of the circumstances” to determine if the facts support permitting the police to search a car without a warrant. In this case, the court found no circumstances articulated that would have permitted an exception to the warrant requirement, and as such, the search of the car was deemed illegal.
Since the stop and search were illegal, the appellate court ruled the gun seized was improper. Accordingly, the court ordered that the plea be vacated. As a practical matter, since the gun cannot be used at trial, this will lead to a dismissal of the case. Of course, the prosecutors may also try to have the NJ Supreme case review the appellate court’s decision.
VERY IMPORTANT LEGAL NOTE: It cannot be understated that many times the police ask for consent to search which is a permitted practice. Often, people consent due to fear, cajoling by the police, and many other reasons. One of the reasons people consent is that the police state that they will get a warrant and search anyway. If you consent, you are waiving your right to argue that the search (like in the case above) was illegal. We always recommend that you not permit a search, and immediately invoke your right to speak to an attorney so that any statements you make cannot be used against you.
At The Bianchi Law Group, LLC, we are former prosecutors who have argued search and seizure cases both as prosecutors and now criminal defense attorneys. If you should ever have any questions that you would like answered, it would be our honor to do so.
No aspect of this attorney advertisement has been approved by the Supreme Court of New Jersey.
