On appeal from Superior Court of New Jersey, Law Division, Union County.
Pressler, Shebell and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
Defendant is under indictment for aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a). The alleged victim of the assault is a thirty year old woman who defendant fathered out of wedlock. The alleged victim was raised by her mother and did not learn the identity of her father until a couple of years before the assault. Anxious to establish a relationship with her father, the alleged victim made arrangements for defendant to travel from his home in western Pennsylvania to spend the weekend of February 18 and 19, 1989 with her at a Sheraton Hotel in Elizabeth. The defendant and alleged victim had lunch and dinner together and stayed in the same hotel room for two nights. According to the victim, at the end of the second day she retired for the evening around 10:30 p.m., but defendant stayed up to watch pornographic movies. Sometime later that night, defendant allegedly committed a sexual assault upon his daughter.
A complaint charging defendant with aggravated sexual assault was signed on February 28, 1989. Thereafter, the hotel complied with the prosecutor's request to provide a copy of defendant's hotel registration records, including the dates of his arrival and departure, the rooms he occupied, his telephone calls, and the charges to his room, including the record of his movie rentals.
On January 17, 1990, defendant moved to suppress all evidence obtained from the records of the hotel on the ground that they were the subject of an illegal, warrantless search and seizure. The trial court granted defendant's motion, ruling that the hotel's records are "similar enough" to phone billing records, which the Court in State v. Mollica, 114 N.J. 329, 554 A.2d 1315 (1989) held to be protected against unreasonable searches and seizure by Article I, paragraph 7 of the New Jersey Constitution, "to be accorded the same protection."
On the day following the court's opinion granting defendant's motion to suppress, the prosecutor applied for a warrant to obtain the hotel records. In support of this application, the prosecutor relied exclusively upon statements of the victim and her mother given prior to the filing of charges against defendant and the testimony of an investigating officer that she had confirmed with the Sheraton that the records of defendant's stay at the hotel still existed. The officer testified that the records were needed to corroborate the victim's account of what occurred during the weekend of the alleged assault. The trial court granted the prosecutor's application for a warrant, but noted that it was not passing on any claim defendant might present regarding the fruit of the poisonous tree doctrine. In compliance with the warrant, the hotel provided the prosecutor with the same records it had previously released voluntarily.
Defendant then filed another motion to suppress, which the trial court granted by an oral opinion delivered on May 3, 1991. The court stated that the prosecutor's application for a warrant was "primarily motivated by the information" obtained by the
warrantless search and concluded that the fruits of the search pursuant to the warrant were tainted by the illegality of the prior search.
The State filed motions for leave to appeal from both suppression orders, which we granted. We conclude that the release pursuant to a search warrant of defendant's hotel registration records was consistent with Article I, paragraph 7 of the New Jersey Constitution. Therefore, we reverse the trial court's order granting defendant's motion to suppress the evidence obtained pursuant to the warrant. This Disposition makes it unnecessary for us to pass upon the validity of the warrantless search.
Preliminarily, we note that the only basis for defendant's challenge to the prosecutor's search of his hotel registration records is the New Jersey Constitution. In Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979), the Supreme Court of the United States held that the identity of telephone numbers called by an individual is not subject to protection under the Fourth Amendment to the United States Constitution. Similarly, in United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976), the Court held that an individual has no privacy interest protected by the Fourth Amendment in financial records maintained by a bank. Since an individual's interest in protecting the privacy of his hotel registration records is similar, indeed perhaps less compelling, than his interest in protecting the privacy of his telephone calls and bank financial records, Smith and Miller indicate that police access to hotel registration records is not subject to any limitations under the Fourth Amendment. However, in State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982) the Supreme Court of New Jersey held that an individual has an interest in the privacy of his telephone billing records which is protected by Article I, paragraph 7 of the New Jersey Constitution. In State v. Mollica, supra, 114 N.J. 329, 554 A.2d 1315, the Court extended its holding in Hunt to telephone billing records resulting from an individual's use of a hotel room telephone. We
assume for the purpose of this opinion, without deciding the issue, that the state constitutional protection which the Supreme Court of New Jersey has recognized in telephone records also would extend to certain hotel registration information, including in particular records of movie rentals. Cf. State v. Hempele, 120 N.J. 182, 201, 576 A.2d 793 (1990) ("many would be upset to see a neighbor or stranger . . . checking receipts to see what videotapes they rent."). Therefore, we pass directly to the question whether any ...