On appeal from Superior Court of New Jersey, Law Division, Cape May County, Ind. No. 05-02-0121.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2006
Before Judges Kestin, Weissbard and Graves.
The State appeals, pursuant to leave granted, from an order suppressing evidence obtained from Comcast Internet Service, the internet service provider (ISP) for defendant Shirley Reid. The evidence consisted of information on file with Comcast that identified defendant as the user of a coded screen name.*fn1
Addressing an issue of first impression, we conclude that defendant had an expectation of privacy under our State Constitution with respect to this identifying information that permitted her to challenge the manner in which it was obtained by the police. Since we also conclude that the method used by the police was unlawful, we affirm the order of suppression.
We take the following facts from defendant's brief.*fn2 On August 27, 2004, Patrolman Charles Fitzmaurice of the Lower Township Police Department handled a walk-in complaint by Timothy Wilson regarding theft via computer. Wilson, the owner of Jersey Diesel, told police someone had broken into his computer system on August 24, 2004, and changed his shipping address and password for all of his suppliers. The shipping address was changed to a non-existent address.
During his conversation with the patrolman, Wilson mentioned that Shirley Reid, an employee who had been out on disability leave, could have made the changes to his account. Wilson said Reid reported for work on August 24 and was not happy with the decision to place her on light duty. An argument ensued between Wilson and Reid, and Reid left the premises. Wilson added that Reid was the only person in the company that knew the company password and ID.
Wilson learned through one of his suppliers that changes had been made to his password and shipping address. As a result, he started to investigate the changes. He discovered the changes were made by someone with an Internet Provider address that was owned by Comcast. Wilson then contacted Comcast to determine the name of the person responsible and was informed that a subpoena was required before Comcast would release any information.
The case was turned over to Lower Township detectives. On September 7, 2004, Detective Robert Smith went to Lower Township Municipal Court to obtain a subpoena duces tecum. Elizabeth Byrne, the Court Administrator of Lower Township Municipal Court, issued the subpoena to Comcast Internet Service. The subpoena read as follows:
The State of New Jersey, To: COMCAST INTERNET SERVICE
You are hereby commanded to attend and give testimony before the Lower Township Municipal Court at 401 Breakwater Road, Erma, New Jersey on the 7TH day of SEPTEMBER, 2004, At 3:00 o'clock P.M., on the part of LOWER TOWNSHIP POLICE DEPARTMENT in the entitled action, and that you have and bring with you and produce at the same time and place, the following: Any and all information pertaining to IP Address information belonging to IP address: 126.96.36.199, which occurred on 08-24-04 between 8:00 a.m. and 11:00 a.m. EST. This information pertains to Comcast case #: NA338384.
Failure to appear according to the command of this Subpoena will subject you to a penalty, damage in a Civil Suit and ...