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Sunday, February 16, 2020


This appeal presents an issue of first impression, requiring the court to determine whether Padilla v. Kentucky, 559 U.S. 356 (2010), and State v. Gaitan, 209 N.J. 339 (2012), require defense counsel to advise their clients whether – and under what circumstances – the successful completion of the pretrial intervention program would permit a defendant to avoid immigration consequences. The Law Division judge denied defendant's petition for postconviction relief, finding Padilla and Gaitan did not apply here, where defendant did not enter a guilty plea.
Because neither Padilla nor Gaitan expressly limits its holding to cases in which a defendant enters a guilty plea, the court declines to narrowly construe their application only to those dispositions. Instead, the court interprets those decisions to impose an obligation upon defense attorneys to advise their clients of the potential immigration consequences of any criminal disposition, whether that disposition will result from a guilty plea, trial, or diversionary program. Accordingly, the court reverses and remands for an evidentiary hearing.


In this appeal, the court held that an intoxicated defendant asleep and behind the wheel of a parked motor vehicle with its engine running is "operating" the vehicle within the meaning of N.J.S.A. 39:4-50(a).

Friday, February 14, 2020

Seminar expungement photo Allan Marain & Ken Vercammen Edison 2-11-20

Seminar expungement photo Allan Marain & Ken Vercammen Edison  2-11-20
Basic information needed by your attorney to start an Expungement. Typing up is best.

1.   Petitioner's name is _____________.  
any other name used___________________.
Current address ___________________________________
CITY _____________________________ STATE _______ ZIP __________

CELL-PHONE ________________________________ rev 1/30/20
OTHER PHONE-DAY __________________________  

E-MAIL ADDRESS ______________________________________________

REFERRED BY: _______________________________________________

2.   Petitioner's date of birth is _______, 

Social Security Number is ________

3.  Petitioner was charged  on [DATE]  ________________ for violation of the following:  
N.J.S.A. 2C:  ______________

type of offense  _________________

Town ___________________                     

Summons/ Warrant/ Complaint #  ____________________
[Leave out traffic tickets ex 39:4-49.1.   Traffic tickets cannot be expunged]
The original complaint number was ___________

4.  This matter was in ___________   County .  

5. This matter was heard in the   ______________ Municipal Court on __________

6. On [DATE] ______, I plead guilty of the following offense: ________________________. 

I was fined _____, costs of ______ and ______. 


on ________________, charges were dismissed

7. The following are all othercharges against me since I was 18 year old, even if the charge was dismissed or it was a Municipal Ordinance:  
[OTHER PRIOR CHARGES] Petitioner was charged  on   ________________ for violation of the following:  
N.J.S.A. 2C:  ______________

type of offense  _________________
Summons/ Warrant/ Complaint # ____________________

Other prior offenses:
This matter was in ___________ County , town ______________

Disposition/ result ___________________________________
[If none, write none, don’t leave blank]
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

                                  (Fax) 732-572-0030                      

Sunday, February 09, 2020


This case probes the boundaries of the United States Supreme Court’s landmark decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that under the Sixth Amendment, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. In this case, defendant's original sentence to special probation was revoked for a series of violations. He was resentenced on his second-degree robbery conviction to the statutory maximum ten-year sentence after already serving roughly four years of special probation. He was given credit towards his prison sentence for the time spent in county jail and in residential treatment but not for the time he participated in outpatient treatment.
Defendant claims his prison sentence violates Apprendi because the combination of the ten-year prison term and time previously spent on special probation exceeds the ten-year maximum sentence for a second-degree conviction. In State v. Hawkins, __ N.J. Super. __ (App. Div.), certif. denied, __ N.J. __ (2019), the court rejected the argument that under Apprendi, a year on special probation undergoing outpatient treatment counts as a year in prison. However, the court in Hawkins affirmed the defendant's eight-year prison sentence on his second-degree conviction “without ruling directly on . . . whether imposition of the maximum custodial sentence plus special probation would be constitutionally defective.” __ N.J. Super. at __ (slip op. at 12).
The court in the present case addresses that issue and holds that such a sentence, which was actually imposed in this instance, does not violate the Sixth Amendment. The court embraces the reasoning in Hawkins and concludes that time on special probation outside a residential treatment facility cannot be combined with a prison term when determining whether a sentence exceeds the "prescribed statutory maximum." The court finds further support for that conclusion in the Supreme Court's most recent pronouncement in the line of Apprendi cases, United States v. Haymond, 588 U.S. __, 139 S. Ct. 2369 (2019). Based on an analysis of Haymond and other precedents, the court holds that the Sixth Amendment issues raised in Apprendi and its progeny apply only to minimum and maximum terms of imprisonment; Apprendi principles simply do not apply to non-custodial forms of punishment such as special probation.

Sunday, February 02, 2020


These consolidated appeals present an issue of first impression, requiring the court to decide whether the State's utilization of federally-contracted civilian monitors, who were sworn as "Special County Investigators," violated the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37. Unlike Title III of the federal Omnibus Crime and Safe Streets Act, 18 U.S.C. §§ 2510-2523, New Jersey's Wiretap Act does not expressly permit delegation of wire interception to civilian personnel.
Because the Prosecutor exercised his inherent power to appoint personnel as part of his responsibility to carry out the duties of his office here, the court concludes the monitors were cloaked with the investigative responsibility of law enforcement officers when they intercepted the communications at issue. Accordingly, the court discerns no violation of the Wiretap Act, and affirms the Law Division order that denied defendants' motion to suppress the intercepted communications and the evidence seized as a result of those communications.


Criminal defense counsel who represented a State witness who was questioned in the investigation of a murder may not then represent the defendant in the same case. On leave granted, the State argues that because defense counsel was present for the witness's interview with detectives, she will be hampered in her ability to effectively cross-examine the witness at trial, materially limiting her ability to represent defendant Lucian Faulcon. The anticipated testimony of the witness involves his identification of a phone number that the police connected to defendant and used to trace defendant's whereabouts at the time of the murder. Defense counsel's former representation of the witness materially limit's counsel's ability to represent defendant. To allow this conflicted representation is contrary to the fair administration of justice.

No, Police police may Not pull over a driver for questioning in furtherance of an investigation without reasonable suspicion State v. Aless

No, Police police may Not pull over a driver for questioning in furtherance of an investigation without reasonable suspicion State v. Alessi (A-41/42-17) 
 Decided January 27, 2020
TIMPONE, J., writing for the Court.
The Court considers whether the police may pull over a driver for questioning in furtherance of an investigation without reasonable suspicion that she committed a crime or traffic violation.
In 2011, defendant Donna Alessi began dating Philip Izzo, a construction official for Raritan Township who supervised the construction staff, including Mark Fornaciari. Fornaciari filed a whistleblower claim, naming Izzo as a defendant. In preparing hisdefense, Izzo took Fornaciari’s personnel file and stored it in his truck. In 2013, the relationship between defendant and Izzo ended. One night in June 2013, Izzo went to a bar in Hillsborough Township. Defendant saw Izzo, went to the parking lot, entered his truck, and removed some of her personal items as well as the personnel file, which she mailed to Fornaciari. The package wound up at the construction office because of an issue with the address, and the police were called. They determined through post office surveillance footage that defendant had mailed the package.
Detective Benedict Donaruma made several attempts to contact defendant: he called and left voicemails, and he left his business card in her door. On another day, he knocked at defendant’s door and, seeing a woman in her home, called out to her. He later testified that all of these methods of initiating contact generally lead to responses. On the day when Donaruma saw the woman in defendant’s home, he waited to see if she wouldleave. After a couple of minutes, he spotted defendant’s vehicle on a local road. ThoughDonaruma did not observe her commit a traffic violation, he pulled behind her in his marked patrol car and activated the overhead lights. When defendant stopped, he approached her car and said he wanted to discuss his investigation. Over the course of the questioning, Donaruma informed defendant multiple times that she was free to leave.
According to Donaruma, defendant initially denied involvement but then admitted she sent the package at the behest of her then-boyfriend Izzo in an effort to get Fornaciari and another person in trouble with the Township. Defendant conceded she and Izzo drafted the letter enclosed in the package together, and she intentionally listed the wrong return address so the package would end up with the Township.
Police arrested Izzo on charges of official misconduct and misapplication of entrusted property. Upon arrest, Izzo gave a statement claiming the personnel file had been stolen out of his truck at the bar. Defendant later gave another statement in the presence of her attorney, which was later played at her trial. In it, defendant indicated that, by the time she mailed the package, she was no longer dating Izzo. She asserted shehad permission to enter Izzo’s truck and remove her personal effects, and that she accidentally grabbed the personnel file. Upon realizing her mistake, she decided to send it back to Fornaciari to spite Izzo and help with the lawsuit.
Defendant was arrested and charged with false reporting, hindering apprehension, and burglary. She moved to suppress her roadside statement based on a violation of the Fifth Amendment. The court denied her motion and admitted the statement at trial. A jury found defendant guilty on all three counts.
The Appellate Division reversed her convictions, holding that the roadside stop was unconstitutional. Following a motion for reconsideration, the Appellate Division changed course as to the burglary conviction, determining that there was clear evidencethat defendant entered Izzo’s truck without permission and removed the personnel file.
Both sides sought certification. The Court granted defendant’s petition, “limitedto the issue of whether the burglary conviction also should have been reversed due to theadmission of defendant’s incriminating roadside statement, which influenced the jury’s determination as to defendant’s credibility.” 232 N.J. 289 (2018). The Court alsogranted the State’s cross-petition in full. 232 N.J. 293 (2018). Following oral argument, the Court retained jurisdiction but remanded the case, directing the trial court to make arecord and findings of fact and law on whether the officer’s stop of defendant’s vehicle was constitutional.” ___ N.J.___ (2018). The judge concluded that “the stop and resultant seizure [were] unconstitutional.”
HELD: The circumstances of this case do not legitimize the stop. Law enforcement must have reasonable and articulable suspicion of a traffic violation, the commission of a crime, or unlawful activity before executing a traffic stop. Accordingly, the roadside statement given by defendant during the unlawful stop should have been excluded at trial, and the Court affirms the Appellate Division’s reversal of her convictions for hinderingapprehension and false reporting. Because defendant’s roadside statement permeated thetrial, severely affecting her credibility and ability to mount a defense to the separate burglary charge, that conviction is reversed as well.
1. Courts evaluate the totality of the circumstances to determine whether an officer had a reasonable suspicion that justified an investigatory stop. The Court reviews cases in which it has determined the constitutionality of a stop where the officer’s suspicion wasnot based on an observed traffic violation and notes that those decisions reveal a highly fact-intensive inquiry. 
2. Based solely on the knowledge available to Donaruma at the time he pulled defendant over, he could not have reasonably suspected defendant participated in a crime. Donaruma testified on remand that defendant was not the target of his investigation or even a suspect at the time he stopped her. Donaruma stopped defendant to develop hisinvestigation into Izzo. From an objective perspective, defendant’s actions on the postoffice surveillance footage were not reasonably more consistent with guilt than innocence. That defendant did not respond to the officers’ calls or visits does not alterthat conclusion; as the trial judge noted, there was no testimony that Donaruma becamesuspicious due to defendant’s elusive behavior. A law enforcement officer cannot use anautomobile stop merely for the purpose of a police interview and without observing a traffic violation or having a reasonable suspicion of other criminal activity. Because the stop in this case was unconstitutional, the Court does not address defendant’s additionalargument that the scope of the stop was unreasonable.  
3. Courts will not exclude evidence sufficiently attenuated from the taint of an unconstitutional stop. The Court reviews the three factors in an attenuation analysis and determines defendant’s statement to Donaruma was not so attenuated from the initial stopas to avoid application of the exclusionary rule. Without that statement, defendant’sconvictions for false reporting and hindering apprehension cannot stand. 
4. Finally, the Court reviews the application of defendant’s roadside statement to her burglary charge. Defendant’s guilt hinged on whether she had permission to enter Izzo’s truck. If the jury believed defendant’s version of events over Izzo’s, then it would not have found defendant guilty of burglary. Yet, this was unlikely in light of the State’s exploitation of contradictions between defendant’s roadside statement and the statement she gave later, with counsel present. Additional facts in the record support defendant’sclaim that she had permission to enter the truck, and Izzo had his own credibility issues.Had the trial court initially excluded defendant’s roadside statement, defendant’scredibility would have remained intact because the State would never have had the opportunity to highlight the falsehoods she told Donaruma. The admission of theroadside statement was “clearly capable of producing an unjust result,” R. 2:10-2, because there is reasonable doubt as to whether the jury would have found defendant guilty of burglary in its absence. The Court does not pass judgment on the merits ofwhether defendant burgled Izzo’s truck. 
The judgment of the Appellate Division reversing defendant’s convictions ofhindering apprehension and false reporting is AFFIRMED, defendant’s convictionfor burglary is REVERSED, and the matter is REMANDED.

In re Application for Permit to Carry a Handgun of Calvin Carlstrom (081981) (Union County & Statewide) (A-63-18

The Directive, issued pursuant to the Court’s administrative rulemaking authority, requires a hearing and is controlling on this issue. The Court remands this matter to the Law Division to conduct a hearing on Carlstrom’s application for a carry-permit and provides guidance as to the scope of that hearing.

State v. Donna M. Alessi ) (A-41/42-17;

The circumstances of this case do not legitimize the stop. Law enforcement must have reasonable and articulable suspicion of a traffic violation, the commission of a crime, or unlawful activity before executing a traffic stop. Accordingly, the roadside statement given by defendant during the unlawful stop should have been excluded at trial, and the Court affirms the Appellate Division’s reversal of her convictions for hindering apprehension and false reporting. Because defendant’s roadside statement permeated the trial, severely affecting her credibility and ability to mount a defense to the separate burglary charge, that conviction is reversed as well.

Sunday, January 26, 2020

State v. Roger Covil) (A-35/36-18; 081267)

State v. Roger Covil) (A-35/36-18; 081267)
The new rule stated in Cain and Simms was intended to apply prospectively to guide future trials, not retroactively to proceedings conducted prior to those decisions. At the time of defendant’s trial, the governing law authorized the use of hypothetical questions such as the questions posed to the State’s experts in this case. And in light of the distinctions between Melendez and the present case, there was no error in the trial court’s admission of defendant’s notice of motion for a writ of replevin and certification.

In the Matter of the Investigation of Burglary and Theft A-61-18; 082243)

In the Matter of the Investigation of Burglary and Theft A-61-18; 082243)
In light of the federal and state requirements to obtain a follow-up sample, the State has shown that the physical characteristics sought in this case cannot practicably be obtained by any means other than investigative detention pursuant to Rule 3:5A-1. The Court therefore reverses the judgment of the Appellate Division.

Sunday, January 19, 2020

State of New Jersey in the Interest of A.A. (A-50-18)

State of New Jersey in the Interest of A.A. (A-50-18) (081793) Argued October 23, 2019 -- Decided January 15, 2020
RABNER, C.J., writing for the Court.

In State v. Presha, 163 N.J. 304, 316 (2000), the Court directed law enforcementofficers to “use their best efforts to locate a parent or legal guardian” before starting tointerrogate a juvenile in custody. In an otherwise intimidating setting, parents can help juveniles understand they have the right not to incriminate themselves and the right to have an attorney present -- and can help juveniles decide whether to waive their rights.Parents essentially serve “as a buffer” between juveniles and the police. Id. at 315.
In this appeal, the Court considers whether incriminating statements a fifteen-year- old made to his mother at a police station can be used against him.
On July 7, 2016, Officer Joseph Labarbera saw three black males on bicycles head east on Wilkinson Avenue in Jersey City. About fifteen seconds later, he and his partner heard eight to ten gunshots from the east. They transmitted over the radio what they had heard along with a description of the three men on bicycles. Soon after, two victims were found in front of 135 Wilkinson Avenue, in the direction the cyclists were seen riding.
A.A. was stopped nearby and, based on Labarbera’s identification, was taken into custody, brought to a juvenile facility, and placed in a holding cell. In accordance with Presha, the police contacted his mother, who was taken to an interview room where Detective Joseph Chidichimo and another officer told her why A.A. was under arrest.A.A.’s mother was visibly emotional and asked to speak with her son; the officers tookher to where A.A. was detained. The police allowed A.A. and his mother to speak through the gate of the holding cell. Five officers were in the room within ten to fifteen feet of A.A.
Chidichimo testified at a pretrial hearing that he overheard the conversation between A.A. and his mother. According to the detective, A.A.’s mother asked if he hadbeen on Wilkinson Avenue, and he confirmed that he had. When she asked why, A.A.responded, “because they jumped us last week.” At that point, A.A.’s mother began tocry and left the room.
A.A.’s mother testified at the hearing. She explained that the police told her A.A. had “shot somebody” and that she asked to speak with her son. She said she was crying and spoke in a loud voice, and that she and her son could see multiple officers in theroom at the time. She testified that A.A. denied “do[ing] that” and said nothing about “being jumped.”
A.A. was charged with two counts of attempted murder as well as weapons offenses. At the delinquency hearing, the State introduced A.A.’s statements to his mother, which the Family Part judge had found admissible; testimony from Labarbera, Chidichimo, and another officer; photos and physical evidence from the shooting; and video surveillance. The video was not clear enough to identify any of the cyclists. And none of the physical evidence directly connected A.A. to the shooting.
The judge adjudicated A.A. delinquent on two counts of aggravated assault and all weapons charges, relying heavily on Officer Labarbera’s testimony that he observed A.A.riding a bicycle on Wilkinson Avenue just before the shooting; the surveillance video;and Detective Chidichimo’s account of A.A.’s statement to his mother. The Appellate Division reversed and remanded for a new hearing. 455 N.J. Super. 492, 506-07 (App. Div. 2018). The Court granted certification. 236 N.J. 602 (2019).
HELD: The actions of the police amounted to the functional equivalent of interrogation. As a result, A.A. should have been advised of his Miranda rights in the presence of his mother. To hold otherwise would turn Presha and the safeguards it envisioned on their head. To address the special concerns presented when a juvenile is brought into custody, police officers should advise juveniles of their Miranda rights in the presence of a parent or guardian before the police question, or a parent speaks with, the juvenile. Officers should then let the parent and child consult in private. That approach would afford parents a meaningful opportunity to help juveniles understand their rights and decidewhether to waive them. Because A.A.’s inadmissible statements comprised a substantialpart of the proofs against him, a new hearing is necessary.
1. Federal and state law provide protections against self-incrimination. Suspects can waive their rights and make incriminating statements to law enforcement. To be admissible at trial, the State must demonstrate beyond a reasonable doubt that a suspect’swaiver was knowing, intelligent, and voluntary. Courts look to the totality of the circumstances to assess the voluntariness of a statement. (pp. 11-12)
2. In Rhode Island v. Innis, officers arrested the defendant for robbery with a sawed-off shotgun. 446 U.S. 291, 293-94 (1980). Innis received three sets of Miranda warnings but declined to waive his rights. Id. at 294. While Innis was being transported to the central police station, two officers discussed the risk that students who attended a nearby schoolfor “handicapped children” “might find a weapon” and “hurt themselves.” Id. at 294-95.Innis interrupted the conversation and told the officers to “turn the car around so he could
show them where the gun was located.” Id. at 295. The United States Supreme Court held that Miranda’s safeguards applied not only to express interrogation of a suspect in custody but also to “its functional equivalent.” Id. at 300-01. (pp. 12-15)
3. The New Jersey Supreme Court has interpreted N.J.S.A. 2A:84A-19 and N.J.R.E. 503 to grant broader protection than the federal privilege against self-incrimination. The Court has adopted the Innis standard and embraced the view that interrogation includes not only direct questioning but also any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. (pp. 15-16)
4. Juveniles receive heightened protections when it comes to custodial interrogations for obvious reasons. Without guidance from an adult relative, friend, or lawyer, juveniles are on an unequal footing with their interrogators and are not able to know, let alone assert, their constitutional rights. In State in Interest of S.H., the Court “emphasize[d that]whenever possible and especially in the case of young children no child should beinterviewed except in the presence of his parents or guardian.” 61 N.J. 108, 114-15 (1972). (pp. 16-17)
5. The Court built on S.H. in Presha, 163 N.J. at 314. Noting that “[p]arents are in a position to assist juveniles in understanding their rights, acting intelligently in waiving those rights, and otherwise remaining calm in the face of an interrogation,” id. at 315, the Court imposed a bright-line rule for juveniles under the age of fourteen that statementsmade “when a parent or legal guardian is absent from” the interrogation are not admissible “unless the adult was unwilling to be present or truly unavailable,” ibid. Forall juveniles, the Court instructed that “police officers must use their best efforts to locatea parent or legal guardian before” an interrogation begins. Id. at 316. (pp. 18-19)
6. The Court’s recent ruling in State in Interest of A.S., 203 N.J. 131 (2010), underscored the supportive role parents have in the context of a custodial interrogation. In A.S., the police enlisted the mother of a fourteen-year-old girl, A.S., to help during the interrogation process. They asked the mother to recite the Miranda warnings and did not correct her misstatements. Id. at 136. A.S.’s mother repeatedly badgered her into answering the officer’s questions. The Court concluded that A.S.’s confession was involuntary and confirmed that a parent’s “presence alone” is not what Presha contemplated. Id. at 148, 152. To serve as a buffer between the police and the juvenile, aparent must act “with the interests of the juvenile in mind.” Id. at 148. The Court affirmed that the purpose of Presha -- to have a parent present during interrogation --“was to assist the child in the exercise of his or her constitutional rights; it was not toprovide the police with an assistant.” Id. at 137. (pp. 19-20)
7. Here, the police contacted A.A.’s mother and summoned her to the police station. The reason to summon A.A.’s mother was for her to help her son understand his rights and actintelligently in deciding whether to waive them. See Presha, 163 N.J. at 315. But before
mother and son began to speak, the police did not advise A.A. of his rights in hismother’s presence. Neither A.A. nor his mother had been made aware that anything A.A.might say could be used against him, among other important rights. A.A. made critical admissions to his mother that the Family Part judge later relied on. He was subjected tothe “functional equivalent” of express questioning while in custody, and his statements, obtained without the benefit of Miranda warnings, are thus inadmissible. What took place here upended the Presha model. Instead of serving as a buffer to help a juvenileunderstand his rights, the child’s mother unwittingly assisted the police and helped gatherincriminating evidence. The Court bases its ruling on state law. (pp. 20-22)
8. The protections outlined in Presha remain good law. The Court adds the following guidance. The police should advise juveniles in custody of their Miranda rights -- in the presence of a parent or legal guardian -- before the police question, or a parent speaks with, the juvenile. Officers should then give parents or guardians a meaningful opportunity to consult with the juvenile in private about those rights. That approach would enable parents to help children understand their rights and decide whether to waive them -- as contemplated in Presha. If law enforcement officers do not allow a parent and juvenile to consult in private, absent a compelling reason, that fact should weigh heavilyin the totality of the circumstances to determine whether the juvenile’s waiver andstatements were voluntary. See ibid. If legitimate security concerns require the police to observe a private consultation, the police can monitor the interaction without listening to the words spoken between parent and child. (pp. 22-23)
9. The Court agrees with the Appellate Division that a new hearing is required. 455 N.J. Super. at 506. The Family Part judge pointedly relied on A.A.’s statements to establishhis whereabouts at the time of the offense as well as his motive. The pivotal admissionswere “clearly capable of producing an unjust result.” R. 2:10-2. (p. 24)

State v. Randy K. Manning (A-10-18)

State v. Randy K. Manning (A-10-18) (080834) Argued September 23, 2019 -- Decided January 13, 2020
ALBIN, J., writing for the Court.
The primary issue in this appeal is whether, during the interim period between passage of the amendment to the New Jersey Wiretapping and Electronic SurveillanceControl Act (Wiretap Act) in 2010 and the effective date of the Court’s decision in State v. Earls, 214 N.J. 564 (2013), the constitutional warrant requirement and corresponding suppression remedy applied to securing cell-phone location information. This appeal also presents the issues of whether exceptions to the warrant requirement applied to securing that information and whether those same exceptions also applied to securing call-detail records under State v. Hunt, 91 N.J. 338 (1982).
Here, in 2011, after the Wiretap Act amendment went into effect but before theCourt’s decision in Earls, law-enforcement officers -- without a warrant or court order
obtained defendant Randy K. Manning’s cell-phone records by submitting an exigent- circumstances request to a cell-phone service provider. Thus, the constitutional propriety of the police conduct depends on the application of the exigent-circumstances doctrine.
On August 16, 2011, shortly after 8:00 a.m., the Bergen County Prosecutor’sOffice investigated the grisly murder of a victim who had died from multiple gunshot wounds and whose charred body was found in the rear of his Chevy. Detectives secured a judicially authorized warrant to search the vehicle. By the late afternoon or early evening of August 16, Detective John Frazer had two pieces of information that madedefendant “a person of interest”: defendant’s fake California license was found in theChevy owned by his friend, the victim, and defendant’s timeline of his claimed whereabouts seemingly conflicted with the victim’s cell-phone records.
Despite the securing of a search warrant earlier for the Chevy, Detective Frazer bypassed the warrant/court-order process and, that evening, submitted an exigent-circumstances request form to AT&T for defendant’s cell-phone records. Detective Frazer admittedly used the exigent-circumstances request “as an investigatory tool.”Although the detective stated that applying for a search warrant “was not practical at that time,” he conceded that he could have applied for a telephonic warrant. He gave noestimate of the time that it would have taken to apply for a telephonic warrant or to
prepare an affidavit for a search warrant. Nor did he estimate the time it would have taken to secure a warrant, given that a Superior Court judge was on call.
Based on the cell-phone records, defendant became the target of the investigation. The next day, Detective Frazer submitted three separate and detailed affidavits in support of three warrants, including one for a wiretap of, and another for further communicationsdata from, defendant’s cell phone. According to Detective Gary Boesch, on August 17, defendant called the Bergen County Police Department and inquired whether the policewanted to speak with him. The next day Detective Boesch returned defendant’s call. OnAugust 19, defendant took public transportation to the Hackensack bus terminal, where Detective Boesch picked him up for questioning.
The trial court denied defendant’s motion to suppress the warrantless search of hiscell-phone records based on the exigent-circumstances exception. Defendant was convicted of murder, desecration of human remains, and related crimes. In anunpublished opinion, the Appellate Division reversed defendant’s convictions on two grounds and remanded for a new trial. First, the Appellate Division held that the trial court erred in not granting defendant’s request for jury instructions on aggravatedmanslaughter and reckless manslaughter -- lesser-included offenses to the charge of murder. Second, the Appellate Division held that the failure of the police to secure a warrant or court order for defendant’s cell-phone records should have resulted in the suppression of those records.
The Court granted the State’s petition for certification “limited to the issue of theadmissibility of the defendant’s cell phone records.” 235 N.J. 311 (2018).
HELD: During the three-year interim period between passage of the amendment to theWiretap Act in 2010 and the effective date of the Court’s Earls decision in 2013, individuals possessed a reasonable expectation of privacy in cell-phone location information cognizable under our State Constitution. As in other contexts, exceptions to the constitutional warrant requirement -- such as consent or exigent circumstances
-- apply to securing cell-phone records. Therefore, in 2011, our Constitution required law-enforcement officers to obtain either a warrant or court order for cell-phone location information in accordance with the standards of N.J.S.A. 2A:156A-29 or to satisfy one of the exceptions to the warrant requirement. It also follows that, under Article I, Paragraph 7, the exclusionary rule applies to unconstitutional searches and seizures of cell-phone records. Here, the State did not obtain a warrant or court order and failed to satisfy its burden of proving that exigent circumstances justified the warrantless search, requiring suppression of defendant’s cell-phone records.
1. In 2013, in Earls, the Court held that Article I, Paragraph 7 of our State Constitution afforded individuals a reasonable expectation of privacy in their cell-phone location information. 214 N.J. at 588. In light of the constitutional right to privacy safeguarded
by Article I, Paragraph 7, the Court declared that law enforcement “must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrantrequirement,” to secure cell-phone location information. Ibid. The Court determined that the Earls decision represented a new rule of law and therefore applied the warrant requirement for cell-phone location information prospectively. Id. at 591. The Court recognized, however, that since the 2010 amendment to the Wiretap Act, state law had required law enforcement to secure a court order or a warrant to obtain cell-phone location information from a service provider. Id. at 589 (citing N.J.S.A. 2A:156A-29). (pp. 18-23)
2. The Court now holds that the constitutional warrant requirement applied to cell-phone location information during the three-year interim period between passage of theamendment to the Wiretap Act in 2010 and the effective date of the Court’s Earls decision in 2013. However, in light of Earls and the legitimate expectations of law enforcement under the Wiretap Act, the Court also determines that the standard for securing a court order for those records during the three-year interim period was the one set forth in the Act. That is, in the absence of an exception to the warrant requirement, to secure cell-phone location information from a service provider, law enforcement wasrequired, at the very least, to obtain a court order based on “specific and articulable factsshowing that there [were] reasonable grounds to believe that the record or other information . . . [was] relevant and material to an ongoing criminal investigation.” See N.J.S.A. 2A:156A-29(e). The Court also expressly holds that following the 2010 amendment to the Wiretap Act, law-enforcement officers were justified in relying on well-established exceptions to the State Constitution’s warrant requirement for securingcell-phone records, including the exigent-circumstances exception. Cell-phone records seized in violation of our State Constitution are subject to the exclusionary rule.
(pp. 24-25)
3. When the State invokes the exigent-circumstances exception to justify a warrantless search it must prove that law-enforcement officers had an objectively reasonable basis to believe that securing a warrant was not practicable because immediate action was necessary to stop the flight of a suspect, to safeguard members of the public from a threat of harm, or to prevent the destruction of evidence. The Court has never held that a generalized concern about public or police safety or the preservation of evidence would justify a warrantless search or seizure. (pp. 25-31)
4. Detective Frazer was unable to articulate anything more than a generalized concern for public safety and the preservation of evidence as reasons for not complying with the warrant requirement. He did not identify an objectively reasonable basis to believe that there was a threat to the public or police, or that evidence might be destroyed, in the time it would have taken to obtain a warrant. After reviewing defendant’s cell-phone records and determining that defendant was clearly a suspect, the next day Detective Frazer prepared three separate and detailed affidavits for search warrants. The Prosecutor’s
Office did not make any concerted effort to immediately interrogate or detain defendant.A review of the totality of the evidence reveals that the Prosecutor’s Office was able tocomply with the dictates of the warrant requirement of our State Constitution during the murder investigation. The State failed to satisfy its burden of proving that the warrantlesssearch of defendant’s cell-phone records was objectively reasonable to meet the type of exigency recognized in our jurisprudence. For the reasons expressed, the Court affirmsthe judgment of the Appellate Division vacating defendant’s convictions and remands the matter to the trial court. (pp. 31-36)
AFFIRMED. The matter is REMANDED for further proceedings.