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Oettinger v. Township of Bedminster

Superior Court of New Jersey, Appellate Division

April 4, 2013

JOSEPH OETTINGER, III, Plaintiff-Appellant,

Argued April 8, 2013

On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Bergen County, Docket No. C-35-10.

Joseph Oettinger, Jr., argued the cause for appellant in A-1838-11 and respondent in A-3182-11.

Richard J. Guss argued the cause for Township of Bedminster and Nancy Arraial, respondents in A-1838-11 and appellants in A-3182-11 (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, P.C., attorneys; Mr. Guss, on the briefs).

Scott D. Rodgers, Deputy County Counsel, argued the cause for respondent County of Somerset in A-1838-11 (William T. Cooper, III, Somerset County Counsel, attorney; Mr. Rodgers, on the brief).

Mary C. McDonnell argued the cause for respondents Robert Saul & Borough of Westwood in A-1838-11 (Pfund McDonnell, P.C., attorneys; Ms. McDonnell and David T. Pfund, on the brief).

Before Judges Ashrafi, Espinosa and Guadagno.


Although it was enacted in 1979, there are no published opinions that interpret or apply the Subpoena First Act, N.J.S.A. 2A:84A-21.9 to -21.13 (the Act), [1] which has been described as "narrowly circumscrib[ing] the situations in which the State can properly search and seize materials acquired in the course of newsgathering." In re Woodhaven Lumber and Mill Work, 123 N.J. 481, 491 (1991) (analyzing the Shield Law, N.J.S.A. 2A:84A-21 to -21.8); see also In re Subpoena Issued to Schuman, 114 N.J. 14, 24 (1989) (same). In this case, we consider the application of the Act to a suspect in a criminal investigation who asserted a claim to its protection based upon his status as an "internet publisher" after a search warrant was executed and his suppression motion was denied. We affirm the dismissal of plaintiff's complaint against all defendants. As for his claims under the Act, we hold that plaintiff waived any claim to protection; that the officers here were not required to conduct an investigation to determine whether plaintiff was protected by the Act prior to seeking a warrant; and that, even if plaintiff had timely asserted his claim, he was not entitled to the Act's protection because the materials sought were not obtained in the course of newsgathering activities.

Defendants Township of Bedminster and Nanci Arraial (the Bedminster defendants) appeal from the denial of their motion for counsel fees pursuant to Rule 1:4-8. For the reasons that follow, we affirm that denial as well.


It is generally acknowledged that the Act, like its federal counterpart, the Privacy Protection Act (PPA), 42 U.S.C.A. §§ 2000aa-aa12, was a legislative response to the United States Supreme Court's decision in Zurcher v. Stanford Daily, 436 U.S. 547, 567-68, 98 S.Ct. 1970, 1982-83, 56 L.Ed.2d 525, 543 (1978). See Sennett v. United States, 667 F.3d 531, 535 (4th Cir. 2012); Guest v. Leis, 255 F.3d 325, 340 (6th Cir. 2001); Byrnes, Current New Jersey Arrest, Search & Seizure 573-74 (2012-13); Debra L. Stone, The Criminal Justice System and the News Media: Recent Developments, 7 Crim. Just. Q. 178, 196 (1980).

Zurcher had its roots in an April 1971 demonstration at Stanford University Hospital that devolved into a violent clash in which a group of demonstrators, armed with sticks and clubs, attacked and injured nine police officers. Zurcher, supra, 436 U.S. at 550, 98 S.Ct. at 1973-74, 56 L.Ed.2d at 532. Articles and photographs published in the Stanford Daily, a student newspaper, suggested that a Daily staff member might have photographed the assault on the officers. Although there was no allegation that any members of the Daily staff had engaged in unlawful activity, the Santa Clara County District Attorney's Office obtained a warrant to search the Daily's office for negatives and photographs that would assist in the identification of the persons who assaulted the officers. Id. at 551, 98 S.Ct. at 1974, 56 L.Ed.2d at 532. When the warrant was executed, the only photographs found were those that had already been published. No materials were removed from the Daily's office. Id. at 551-52, 98 S.Ct. at 1974, 56 L.Ed.2d at 533.

The student newspaper and various staff members brought a civil action, seeking declaratory and injunctive relief under 42 U.S.C.A. § 1983, against the law enforcement officials involved and the judge who issued the warrant. Judgment was entered in favor of the newspaper and its staff members and affirmed by the Court of Appeals. However, the Supreme Court reversed, stating,

[W]e decline to reinterpret the [Fourth] Amendment to impose a general constitutional barrier against warrants to search newspaper premises, to require resort to subpoenas as a general rule, or to demand prior notice and hearing in connection with the issuance of search warrants.

[Id. at 567, 98 S.Ct. at 1982, 56 L.Ed.2d at 543.]

The Court added, "Of course, the Fourth Amendment does not prevent or advise against legislative or executive efforts to establish nonconstitutional protections against possible abuses of the search warrant procedure[.]" Ibid. Congress and a number of state legislatures, [2] including New Jersey, accepted the invitation to establish such protections.

The protection provided by the federal statute does not turn on whether the person who possesses the materials sought is a member of the news media. Rather, the prohibition applies when the person in possession has "a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication." 42 U.S.C.A. § 2000aa(a), (b). The PPA has certain limited exceptions, which include a "suspect" exception:

[T]his provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if--
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate . . . .


The prohibition in New Jersey's Act provides in pertinent part:

Any person . . . engaged on, engaged in, connected with, or otherwise employed in gathering, procuring, transmitting,
compiling, editing, publishing, or disseminating news for the public . . . shall be free from searches and seizures, by . . . law enforcement officers with respect to any documentary materials obtained in the course of pursuing the aforesaid activities whether or not such material has been or will be disseminated or published.

[N.J.S.A. 2A:84A-21.9.]

Like the PPA, the Act has exceptions to the general prohibition, which include a "suspect" exception virtually identical to that in the federal statute:

This section shall not restrict or impair the ability of any law enforcement officer, pursuant to otherwise applicable law, to search for or seize such materials, if there is probable cause to believe that:
a. The person, corporation, partnership, proprietorship or other entity possessing the materials has committed or is committing the criminal offense for ...

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