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Opinion 98049

DATE: December 7, 1998

SUBJECT: Undercover License Plates, Neb. Rev. Stat. § 60-304




REQUESTED BY: The Honorable E. Benjamin Nelson, Governor




WRITTEN BY: Don Stenberg, Attorney General

Mark D. Starr, Assistant Attorney General




You have asked whether the Nebraska State Patrol may lend

undercover license plates to allied agencies for use in criminal

investigations. We assume that by "allied agencies" you mean

governmental units, whether state, federal or local, with the

responsibility of investigating alleged criminal behavior.




Our answer is yes, if such use is approved by the Director of

the Department of Motor Vehicles.




In 1997 the legislature enacted Neb. Rev. Stat. § 60-304, a

law addressing the issuance of undercover plates by the Department

of Motor Vehicles. As we understand it, the Department had been

issuing such plates for a number of years as a courtesy to various

law enforcement agencies but concerns had arisen about the lack of

express legislative authorization. Also, there may have been a

concern that the privilege was being abused in some cases and it

was apparently felt that greater accountability was needed.




The law provides that such plates may be issued to state,

county, city, or village law enforcement agencies for "legitimate

criminal investigatory purposes." Certain agencies and officers

are then listed by name or title as authorized recipients, together

with the authorized uses of the plates. The State Patrol is one of

four groups which are authorized to use the plates for state law

enforcement purposes.




The law neither specifically authorizes nor prohibits the

State Patrol from sharing undercover plates for authorized

purposes. The Legislature did recognize that undercover plates

might be shared and did not elect to prohibit this. During

legislative debate, Senator Kristensen, the bill's sponsor was

asked by Senator Chambers if the authorized uses mentioned in the

bill were broad enough to permit a local or state law enforcement

agency to provide their undercover plates to the F.B.I. and the

response was that there was no practical way to control who would

be driving a vehicle with undercover plates. Floor Debate on LB

256, 95th Neb. Leg., 1st Sess. 31-32 (April 9, 1997). We

understand this as a somewhat equivocal "yes, they may provide them

to other law enforcement agencies." Nothing was done to amend the

language to specify that authorized agencies could not lend the

plates to another agency to accomplish a mutual and authorized

goal; i.e. "legitimate criminal investigatory purposes".




The fact no amendment was offered in this regard, the

traditional cooperation between law enforcement agencies, the

legislative encouragement of such cooperation found in statutes

like the Interlocal Cooperation Act, Neb. Rev. Stat. § 13-801 et

seq. and statutes dealing with drug enforcement, particularly Neb.

Rev. Stat. § 28-430, support our conclusion.




One may ask whether allied state or local agencies must be

treated differently from federal ones, particularly since Senator

Chambers was successful in his effort to remove federal law

enforcement from the bill's original list of authorized recipients.

We are of the view that it is the purpose to which the plates will

be put, rather than the identity of the jurisdiction the borrowing

agency serves, that is most important. This conclusion is

supported by the fact that the sponsor's comment about the sharing

of the plates with the F.B.I. did not lead to an amendment to

restrict such plate-sharing. Also, when explaining his move to

take federal agencies off the authorized recipients list, the

senator said that if the F.B.I. was going to use undercover plates,

he did not want it to be done with the Legislature's explicit

authorization. Floor Debate on LB 256, 95th Neb. Leg., 1st Sess.

38 (April 9, 1997). In other words, direct issuance to federal

agencies is impermissible, but a recipient may make a loan of the

plate if it chooses and if that arrangement is approved by the

Director of the Department of Motor Vehicles pursuant to Neb. Rev.

Stat. § 60-304(3).




This raises the related question of whether the restriction in

the second sentence of section 60-304 limits the Patrol to issuing

the plates for "state law enforcement purposes", as opposed to the

general "criminal investigatory purposes" found in the first

sentence of section 60-304, and, if so, whether this prevents the

Patrol from loaning a plate to a federal agency for federal law

enforcement purposes or to a local law enforcement agency which is

investigating a city ordinance violation. In our opinion, the two

sentences are complementary. The proponent of the bill

acknowledged some redundancy in these provisions and did not view

them as mutually exclusive. Floor Debate on LB 256, 95th Neb.

Leg., 1st Sess. 16-17 (Feb. 26, 1997). The second sentence may

supplement the first by authorizing the use of the plates with some

of the enforcement work done by the named entities in the civil

realm, such as some of the work done by the Patrol's Carrier

Enforcement Division.




Finally, in our opinion, since the Legislature neither

expressly approved nor prohibited the loaning of undercover plates,

this is an issue for administrative interpretation by the

Department of Motor Vehicles. Neb. Rev. Stat. § 60-304(3)

provides as follows:




Upon receipt of a completed form, the director shall

determine whether the undercover license plates will be

used by an approved agency for a legitimate purpose

pursuant to subsection (1) of this section. If the

director determines that the undercover license plates

will be used for such a purpose, he or she may issue the

undercover plates in the form and under the conditions he

or she determines to be necessary. The decision of the

director regarding issuance of the undercover license

plates is final.




Your opinion request letter does not specify whether the

Director of the Department of Motor Vehicles has authorized

undercover license plates for the State Patrol to be loaned to the

FBI or other criminal law enforcement agencies. If he has, then in

the absence of any statutory prohibition on the loaning of plates

and in view of the statute making the Director's decision final,

this administrative decision cannot appropriately be called into

question.




Sincerely,




DON STENBERG

Attorney General








Mark D. Starr

Assistant Attorney General