The People v. Andrew R. Bushey ( 2017 )

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 50
The People &c.,
Respondent,
v.
Andrew R. Bushey,
Appellant.
Barry Nelson Covert, for appellant.
Raymond C. Herman, for respondent.
DiFIORE, Chief Judge:
To ensure the safety of our roads, a police officer may
run a license plate number through a government database to check
for any outstanding violations or suspensions on the registration
of the vehicle. We hold that such a check, even without any
suspicion of wrongdoing, is permissible, and does not constitute
- 1 -
- 2 - No. 50
a search. We further hold that information obtained indicating
the registration of the vehicle is in violation of the law as a
result of this check may provide probable cause for the officer
to stop the driver of the vehicle.
I.
In the early morning hours of August 10, 2014, a
Buffalo State University police officer observed a vehicle
operated by defendant drive past him. The officer testified at
the suppression hearing that he did not observe any violations of
the Vehicles and Traffic Law, nor was defendant's driving erratic
or unusual in any way. Nevertheless, the officer manually
entered the car's license plate number into his patrol car's
computer system. This computer system was linked to a Department
of Motor Vehicle (DMV) database which provided information about
the registration of the vehicle and any potential suspensions or
alerts associated with the vehicle. After running the plate, the
officer discovered that the vehicle's registration was suspended
due to unpaid parking tickets and, acting upon that information,
he followed and stopped the vehicle defendant was driving.
During the traffic stop, again using the database, the officer
learned that defendant's license was also suspended. Based on
his observations of defendant during the traffic stop, the
officer arrested defendant for driving while intoxicated, along
with violations for operating without a valid registration or
license.
- 2 -
- 3 - No. 50
At the hearing granted upon defendant's motion to
suppress evidence, defendant challenged the lawfulness of the
stop of the vehicle and his person, on the ground that the
officer conducted an impermissible search when he ran the license
plate of the vehicle through the DMV computer. Defendant argued
that the officer had no legal basis to run the license plate
number because the alleged standard for manually running a
license plate is the same probable cause standard for stopping a
person driving a vehicle. The People responded that defendant's
legal argument was not supported by case law, and in any event,
that running the license plate did not constitute a police
encounter or intrusion. Citing to People v Ingle (36 NY2d 413
[1975]), the suppression court ruled that the officer had no
cause to run the license plate and no reasonable suspicion to
justify his stop of the car, and thus suppressed the evidence and
dismissed the charges. The intermediate appellate court
reversed, determining that both the license plate check and the
stop were lawful. A Judge of this Court granted defendant leave
to appeal (26 NY3d 1108 [2016]), and we now affirm.
II.
We start with the premise that "[s]ince Katz, the
existence of a privacy interest within the Fourth Amendment's
protective ambit has been understood to depend upon whether the
individual asserting the interest has demonstrated a subjective
expectation of privacy and whether that expectation would be
- 3 -
- 4 - No. 50
accepted as reasonable by society" (People v Weaver, 12 NY3d 433,
439 [2009], citing Katz v United States, 389 U.S. 347, 361 [1967]
[Harlan, J., concurring]). The question we must answer here is
whether a driver has a reasonable expectation of privacy in
information provided to the DMV concerning his or her
registration of a vehicle operated on a public roadway, which is
accessible to police officers through the DMV database.
As defendant concedes, a driver does not have any
reasonable expectation of privacy in the license plate number
itself, nor would any expectation in such publicly exposed
information be recognized as reasonable by society. We now
conclude that a driver has no expectation of privacy in the DMV
database information associated with a license plate number. Our
Vehicle and Traffic Law provides a comprehensive set of
requirements for lawfully operating a vehicle in the State of New
York. It mandates that
"[n]o person shall operate, drive or park a
motor vehicle on the public highways of this
state unless such vehicle shall have a
distinctive number assigned to it by the
commissioner and a set of number plates
issued by the commissioner with a number and
other identification matter if any,
corresponding to that of the certificate of
registration conspicuously displayed"
(Vehicle and Traffic Law § 402[1][a]).
We have long recognized that "[o]ne of the important objects of
registration of motor vehicles is to facilitate the
identification of the owner" (Shuba v Greendonner, 271 NY 189,
192 [1936]; see also Matter of Froslid v Hults, 20 AD2d 498, 503
- 4 -
- 5 - No. 50
[2d Dept 1964] ["the purpose of the license plate of an
automobile is for ready identification of the owner by the police
and by the public"]). This purpose is accomplished when a police
officer is able to observe the physical plate number and access
DMV information associated with it.
Though this Court has not addressed the particular
question of whether a license plate check constitutes a search,
every federal circuit that has considered the issue has held that
it does not (see United States v Miranda-Sotolongo, 827 F3d 663,
668 [7th Cir 2016] ["observing and recording the registration
number was not a search within the meaning of the Fourth
Amendment. Nor was it a search to use the registration tag
number (in which defendant had no reasonable expectation of
privacy) to retrieve the registration information present in the
law enforcement database"]; United States v Sanchez, 612 F3d 1, 3
n 1 [1st Cir 2010]; United States v Diaz-Castaneda, 494 F3d 1146,
1152 [9th Cir 2007] ["when police officers see a license plate in
plain view, and then use that plate to access additional non-
private information about the car and its owner, they do not
conduct a Fourth Amendment search"]; United States v Ellison, 462
F3d 557, 563 [6th Cir 2006] ["Thus, so long as the officer had a
right to be in a position to observe the defendant's license
plate, any such observation and corresponding use of the
information on the plate does not violate the Fourth Amendment"];
Olabisiomotosho v City of Houston, 185 F3d 521, 529 [5th Cir
- 5 -
- 6 - No. 50
1999]; United States v Walraven, 892 F2d 972, 974 [10th Cir
1989]). Lower courts of this state reached the same conclusion
(see People v Davila, 27 Misc. 3d 921, 925 [Sup Ct, Bronx County
2010], affd 137 AD3d 655 [1st Dept 2016]; People v Diggs, 38 AD3d
565, 565 [2d Dept 2007], lv denied 9 NY3d 922 [2007]; People v
Brown, 306 AD2d 291, 291 [2d Dept 2003], lv denied 100 NY2d 618
[2003]), as have courts in other states (see People v Goodum, 356
Ill App 3d 1081, 1085-1086, 828 NE2d 835, 840 [Ill App Ct 2005];
Commonwealth v Muckle, 61 Mass App Ct 678, 681, 814 NE2d 7, 11
[Mass App Ct 2004]; State v Richter, 145 NH 640, 640-641, 765 A2d
687, 688 [2000]).
Because the purpose of a license plate is to readily
facilitate the identification of the registered owner of the
vehicle for the administration of public safety, a person has no
reasonable expectation of privacy in the information acquired by
the State for this purpose and contained in a law enforcement or
DMV database. Indeed, the information is typically provided
voluntarily by a driver to a government agency in exchange for
the privilege of a valid license and registration.1 Considering
1
Defendant argues on appeal that the officer may have
accessed private information, such as his social security number.
Although this argument is not preserved for our review, we note
that the record indicates only that the DMV database used by the
officer here gave information about the vehicle's registration
and defendant's license status, and the officer testified that
the only relevant factor he discovered before stopping defendant
was that the registration was suspended due to unpaid parking
tickets.
- 6 -
- 7 - No. 50
that police officers are authorized by law to inspect and check
for violations of licensing and registration requirements (see
Vehicle and Traffic Law §§ 390, 401), drivers cannot claim any
objectively reasonable expectation of privacy with respect to the
DMV information being obtained by law enforcement.2 An officer's
observation of that which is publicly displayed and the use of
the information relative thereto contained in the DMV database
does not violate defendant's Fourth Amendment rights, nor any
provision of our New York State Constitution. As defendant did
not have any reasonable expectation of privacy in either his
license plate or the information lawfully obtained and accessible
through the DMV database, there was no search or seizure
cognizable under federal or state constitutional law.
III.
Police stops of automobiles in New York State are legal
"when there exists at least a reasonable suspicion that the
driver or occupants of the vehicle have committed, are
committing, or are about to commit a crime" (People v Spencer, 84
NY2d 749, 753 [1995]). While "a police officer may [not] stop an
automobile, arbitrarily chosen from the stream of traffic on a
2
To the extent defendant relies on the "Driver's Privacy
Protection Act of 1994," which governs the release of information
contained in DMV databases, that statute creates no reasonable
expectation that license and registration information is kept
private from law enforcement. The statute permits the release of
DMV information "[f]or use by any government agency, including
any court or law enforcement agency, in carrying out its
functions" (18 USC § 2721 [b] [1]).
- 7 -
- 8 - No. 50
public highway only because of the unusual but irrelevant
appearance of the vehicle, solely to examine the motorist's
license and registration" (Ingle, 36 NY2d at 414), defendant's
freedom of movement was never "stopped" until after the officer
ran his license plate and obtained probable cause to believe the
vehicle was being operated with a suspended registration. We
prohibit arbitrary traffic stops because they constitute
unreasonable "seizures" of persons in violation of the
constitution (see id. at 418). But here, the stop of defendant's
car occurred only after the check had supplied the officer a
reason to do so. And while we are mindful of the concerns about
license plate checks,
"the possibilities of database error and
police officer abuse, while real, do not
create a legitimate expectation of privacy
where none existed before. Government
actions do not become Fourth Amendment
searches simply because they might be carried
out improperly. If an officer does go
outside the proper bounds of a license plate
search, it is that misconduct that might give
rise to a constitutional or statutory
violation" (Diaz-Castaneda, 494 F3d at 1152).
Nothing in the record before us suggests there was anything
unreasonable about the police officer's actions or that the
officer had any illegal motives. He ran the license plate and
accessed the DMV database in the performance of his official
duties. Therefore, the check was lawful, and the information
from the database provided him with a valid reason to stop
defendant's car.
- 8 -
- 9 - No. 50
Accordingly, the order of the County Court should be
affirmed.
* * * * * * * * * * * * * * * * *
Order affirmed. Opinion by Chief Judge DiFiore. Judges Rivera,
Stein, Fahey, Garcia and Wilson concur.
Decided May 4, 2017
- 9 -