STATE OF NEW JERSEY VS. NATALY Y. TICONA-GOMEZ A-5067-17T3 (17-10-1408, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5067-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NATALY Y. TICONA-GOMEZ,
Defendant-Appellant.
_____________________________
Argued May 9, 2019 – Decided July 10, 2019
Before Judges Simonelli, Whipple and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 17-10-1408.
Ramon M. Gonzalez argued the cause for appellant.
William P. Miller, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Dennis Calo, Acting Bergen County
Prosecutor, attorney; William P. Miller, of counsel and
on the brief; John J. Scaliti, Legal Assistant, on the
brief).
PER CURIAM
Following the denial of her motion to suppress, defendant Nataly Y.
Ticona-Gomez entered a conditional guilty plea to fourth-degree operating a
motor vehicle during a period of suspension for a second or subsequent violation
of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4(a), N.J.S.A. 2C:40-26(b). On appeal,
defendant contends the police violated State v. Donis, 157 N.J. 44 (1998), by
illegally accessing personal information during a mobile data terminal (MDT)
random license plate check on the vehicle she was driving. We disagree and
affirm.
I.
A.
A police officer must have "an articulable and reasonable suspicion that
[a] driver has committed a motor vehicle offense" before the officer may stop
the vehicle. State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith,
306 N.J. Super. 370, 380 (App. Div. 1997)). However, a police officer need not
observe a motor vehicle violation before using a MDT to conduct a random
license plate check. Donis, 157 N.J. at 54. On the contrary, our Supreme Court
has held that, "because MDT checks are not traditional searches subject to
Fourth Amendment restrictions, they can be 'random,' that is, not based on
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reasonable suspicion, and thus need not be governed by predetermined objective
criteria." State v. Segars, 172 N.J. 481, 490 (2002).
Although Donis "eliminated traditional constitutional concerns relevant to
the basic motor vehicle information, [the Court] invoked provisions of the Right
to Know Law, N.J.S.A. 39:2-3.3 and 39:2-3.4, to insulate 'the personal
information' of motorists." Id. at 491 (quoting Donis, 157 N.J. at 55-56).
N.J.S.A. 39:2-3.4(a) prohibits the disclosure of "personal information about any
individual obtained by the [New Jersey Division of Motor Vehicles (DMV)] in
connection with a motor vehicle record." "Personal information" is defined as
"information that identifies an individual, including an individual's photograph;
social security number; driver identification number; name; address other than
the five-digit zip code; telephone number; and medical or disability information,
but does not include information on vehicular accidents, driving violations, and
driver's status." N.J.S.A. 39:2-3.3 (emphasis added). The Court recognized that
"[i]n enacting Sections 3.3 and 3.4, the Legislature balanced the State's goals to
maintain highway safety by ensuring that only qualified drivers operate safe
motor vehicles, by protecting law enforcement officers in fulfilling their duties
and by protecting motorists from unnecessary disclosure of their personal
information." Donis, 157 N.J. at 55.
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"To best balance [the Legislature's] concerns," the Court imposed a two-
step process for a MDT random license plate check:
In the first step, the initial random license plate look-up
would display information regarding only the
registration status of the vehicle, the license status of
the registered owner, and whether the vehicle has been
reported stolen. The registered owner's personal
information would not be displayed. If the original
inquiry disclosed a basis for further police action, then
the police officer would proceed to the second step,
which would allow access to the "personal information"
of the registered owner, including name, address, social
security number, and if available, criminal record.
[Ibid.]
Under the two-step process, "police officers who were using MDTs at random
and who lacked suspicion could access only non-private information." Id. at 56.
"[I]f the initial MDT inquiry disclosed that the car was unregistered, reported
stolen or that [the] registered owner was not properly licensed, that information
would then justify the police officer accessing the 'personal information' from
the MDT." Ibid.At the time the Court decided Donis, a MDT had access to the database of
the DMV, but not the criminal history information of the National Crime
Information Center (NCIC) or the State Crime Information Center databases.
Id. at 47. The information accessible on a MDT included the vehicle's
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registration status, the registered owner's driver's license status, and whether the
vehicle had been reported stolen. Ibid.A MDT now uses the Info Cop database, which has access to the databases
of the DMV, NCIC, and the Judiciary's Automated Traffic System (ATS). A
MDT also has access to the e-Ticket database, which provides information
regarding whether anyone who drove the vehicle was issued a motor vehicle
summons and, if so, displays the type and date of the offense and the individual's
driver's license number.
B.
Lieutenant Dennis Ring of the Edgewater Police Department testified at
the suppression hearing that he conducts fifty to three hundred random license
plate checks during an eight hour shift to ensure the vehicles he observed are
not stolen, are properly registered, and the operators' driver's licenses are not
suspended or revoked. At approximately 5:30 p.m. on July 24, 2017, Ring
observed a female driving a black Nissan Altima northbound on River Road. He
entered the vehicle's license plate number into his MDT and "hit the random
button" (step one). Step one displayed DMV information showing the Nissan
was properly registered and the registered owner, Juan C. Ticona-Chaupis, had
a valid driver's license and no active warrants and NCIC information showing
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there were "no hits" on the registered owner. Step one also displayed e-Ticket
information showing that less than two months prior, on May 12, 2017, a female
driver of the vehicle was issued summonses for driving while intoxicated (DWI),
N.J.S.A. 39:4-50; refusal to consent to taking of samples of breath, N.J.S.A.
39:4-50.2; and driving while license suspended, N.J.S.A. 39:3-40. The female's
driver's license number was highlighted and underlined, indicating a hyperlink
to another screen.
Ring explained that because the motor vehicle violations were recent and
serious in nature and having observed that the driver of the Nissan was female,
he decided to further investigate to ensure the driver was properly allowed to
operate a vehicle and was not wanted by law enforcement. He clicked on the
hyperlink, which connected him to a screen that displayed personal information
about the female, including her photograph, hair and eye color, social security
number, and address, and information regarding a protective order and
additional summonses (step two).
Step two also showed that the female's driver's license was suspended.
Upon seeing this, Ring turned his patrol vehicle around, "pulled alongside the
[Nissan,]" saw that "the photo[graph] . . . matched the . . . driver that was
operating the vehicle northbound on River Road[,]" and then "[c]onducted a
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motor vehicle stop."1 The driver, later identified as defendant, gave Ring her
passport, which confirmed her identity. She admitted she was recently
convicted of DWI and her driver's license was suspended for two years because
this was her second DWI conviction. Ring contacted police headquarters,
confirmed this information, and placed defendant under arrest.
Ring issued defendant summonses for driving while license suspended,
N.J.S.A. 39:3-40, and failing to possess a driver's license, N.J.S.A. 39:3-29. A
grand jury indicted defendant for fourth-degree operating a motor vehicle during
a period of suspension for a second or subsequent violation of N.J.S.A. 39:4-50
or N.J.S.A. 39:4-50.4(a), N.J.S.A. 2C:40-26(b). On her motion to dismiss,
defendant argued that Donis limits MDT random license plate checks to
information about the vehicle's registration status, the owner's driver's license
status, and whether the vehicle had been reported stolen. Defendant posited that
because step one of Ring's MDT check revealed the Nissan was properly
registered, the registered owner had a valid driver's license, and the vehicle was
not reported stolen, Ring violated Donis by not terminating the search.
1
Contrary to defendant's argument on appeal, Ring's police report did not state
the stop occurred before he identified defendant from the photograph. The
report merely stated that Ring was "concerned [there] may be a criminal offense
associated with driving the car [and] conducted a motor vehicle stop in the area
of the Edgewater [C]ommons parking lot."
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In denying the motion, the motion judge found Ring's testimony credible
and determined he did not violate step one of Donis because the e-Ticket
information showing the three summonses recently issued to defendant was not
personal information. The judge also found Ring had a reasonable and
articulable suspicion justifying his further inquiry based on his observation of a
female driving the Nissan and knowledge that a female received a recent
summons for driving without a license. The judge further found Ring had a
reasonable and articulable suspicion that a motor vehicle violation was being
committed when he saw that the description of the female produced by the MDT
check matched defendant. Thus, the judge ruled the stop was lawful.
Following defendant's guilty plea, the judge imposed a mandatory 180-
day jail term and the appropriate fines and penalties and suspended defendant's
driver's license for twenty-four months concurrent to her previous suspension.
This appeal followed. In a July 25, 2018 order, we stayed the jail term pending
appeal.
II.
Our review of a trial court's decision on a motion to suppress is limited.
State v. Robinson, 200 N.J. 1, 15 (2009). As our Supreme Court has held:
Appellate review of a motion judge's factual findings in
a suppression hearing is highly deferential. We are
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obliged to uphold the motion judge's factual findings so
long as sufficient credible evidence in the record
supports those findings. Those factual findings are
entitled to deference because the motion judge, unlike
an appellate court, has the "opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy."
[State v. Gonzales, 227 N.J. 77, 101 (2016) (citations
omitted) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)).]
"A disagreement with how the motion judge weighed the evidence . . . is not a
sufficient basis for an appellate court to substitute its own factual findings to
decide the matter." State v. Elders, 192 N.J. 224, 245 (2007). We will "reverse
only when the trial court's determination is 'so clearly mistaken "that the
interests of justice demand intervention and correction."'" State v. Gamble, 218
N.J. 412, 425 (2014) (quoting Elders, 192 N.J. at 244). However, we owe no
deference to the trial court's legal conclusions or interpretations of the legal
consequences flowing from established facts, and review questions of law de
novo. State v. Watts, 223 N.J. 503, 516 (2015). Applying the above standards,
we discern no reason to reverse.
Defendant argues that Donis constitutionally limits the disclosure of
information in step one to the vehicle's registration status, the registered owner's
driver's license status, and whether the vehicle has been reported stolen.
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Defendant posits that once Ring obtained this information and saw nothing
improper, the search was over and he was prohibited from engaging the
hyperlink to obtain her personal information. Defendant concludes Ring
violated her constitutional rights by accessing e-Ticket information not
approved of in step one of Donis.
Defendant's constitutional argument is misplaced. The holding in Donis
rested on statutory grounds, not constitutional grounds. See Donis, 157 N.J. at
60 (Stein, J., concurring) (noting the Court's opinion treated the legality of
police officers' random use of MDTs primarily as an issue of statutory
interpretation); see also State v. Sloane, 193 N.J. 423, 436 n.2 (2008) (noting
the Donis Court based its decision on New Jersey's Right to Know Law). Thus,
even if Ring ran afoul of Donis, this did not constitute a constitutional violation.
We also disagree that Donis limits the disclosure of information in step
one to the vehicle's registration status, the registered owner's driver's license
status, and whether the vehicle has been reported stolen. Computer technology
has advanced since the Court decided Donis over twenty years ago, and the
police now have access to more information during step one. Although not
specifically approved of in Donis, in State v. Diloreto, 180 N.J. 264, 277 (2004),
the Court found nothing improper about police access to NCIC information
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during a step one MDT check, which revealed information about the vehicle's
last user and his identifying information. In State v. Coviello, No. A-3904-09
(App. Div. Oct. 8, 2010) (slip op. at 5), we found nothing improper about police
access to warrant information during a step one MDT check. We find no reason
that the police should not have access to e-Ticket information during step one,
as this information would assist them in maintaining highway safety by ensuring
that only qualified drivers operate motor vehicles. See Donis, 157 N.J. 55.
In any event, Donis prohibits the police from accessing "personal
information" in step one. E-Ticket information about a driver's motor vehicle
violations and driving status is not personal information barred from disclosure.
See N.J.S.A. 39:2-3.3 (Personal information "does not include information on
. . . driving violations, and driver's status."). Notably, defendant did not address
this issue. Thus, Ring did not violate Donis by accessing e-Ticket information
in step one about defendant's motor vehicle violations and driving status and
using that information to engage the hyperlink and obtain her personal
information in step two.
Further, Ring had a basis for further police action when he discovered that
a female driver of the Nissan had recently been issued a summons for driving
while license suspended and observed a female driving the Nissan. Thus, he had
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probable cause to proceed to step two and obtain defendant's personal
information.
Lastly, "[t]he New Jersey Supreme Court has determined that license plate
checks followed by motor vehicle stops based on reasonable suspicion that the
driver's license is suspended are constitutionally permissible in light of the
interests at stake." State v. Pitcher, 379 N.J. Super. 308, 314 (App. Div. 2005).
In Pitcher, we held that:
Because a motor vehicle stop based upon a reasonable
suspicion that the driver's license is suspended is
permissible, the only question we must address is
whether the officer's suspicion was reasonable.
Specifically, we must consider whether the facts
available to the officer "at the moment of the seizure,"
were sufficient to cause a person of reasonable caution
to believe that defendant was driving without a license.
To establish reasonable suspicion, "the officer must be
able to point to specific and articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant" the suspicion.
[Id. at 315 (citations omitted) (quoting State v. Pineiro,
181 N.J. 13, 21 (2004)).]
Further, a stop of a motor vehicle is justified when a police officer "has an
articulable and reasonable suspicion that the driver has committed a motor
vehicle offense." Locurto, 157 N.J. 463, 470 (1999) (quoting Smith, 306 N.J.
Super. at 380).
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Based on the facts available to him, Ring had an articulable and reasonable
suspicion that the driver's license of the female he observed driving the Nissan
was suspended and she committed the motor vehicle offense of driving while
license suspended. Accordingly, the motor vehicle stop was lawful.
To the extent we have not specifically addressed any of defendant's
remaining arguments, we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
We affirm defendant's conviction, vacate the July 25, 2018 order staying
the mandatory 180-day jail term, and remand this matter to the trial court for
imposition of sentence.
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