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State v. J.S.G.

Superior Court of New Jersey, Appellate Division

September 24, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
J.S.G., [1] Defendant-Appellant.

          Argued September 14, 2017

          On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 13-12-1208.

          Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Daniel S. Rockoff, of counsel and on the briefs).

          Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Steven A. Yomtov, of counsel and on the brief).

          Before Judges Simonelli, Haas and Rothstadt.

          OPINION

          SIMONELLI, P.J.A.D.

         This appeal involves the warrantless, nonconsensual search of children's school records for the name of their father, defendant J.S.G., who was the owner of a vehicle linked to two burglaries. Defendant pled guilty to fourth-degree receiving stolen property, N.J.S.A. 2C:20-7, after the trial court denied his motion to suppress, and was sentenced to a two-year probationary term. We affirm the denial of the motion, but for different reasons than the court expressed in its February 25, 2015 oral opinion. See Aquilio v. Cont'l Ins. Co. of N.J., 310 N.J.Super. 558, 561 (App. Div. 1998).

         I.

         The parties stipulated to the following facts at the suppression hearing. On August 18, 2013, Westville Police Officer Amanda Myers responded to a reported burglary at a home located on Magnolia Street. The homeowner informed Myers that someone broke into his home and stole numerous household appliances and tools valued at approximately $4000. There were no leads developed at the scene.

         On August 28, 2013, Westville Police Officer Daniel Garr responded to a reported burglary at another home located on Magnolia Street. An electrician working at the home reported that several appliances valued at approximately $3000 were missing. Garr found tire tracks leading from the driveway to the back door of the home that appeared to be wide enough to belong to a large pickup truck. There were no leads developed at the scene.

         Westville Police Detective Donald Kiermeier, who was assigned to investigate both burglaries, obtained video surveillance from a building adjacent to the home burglarized on August 28, 2013. The video from one camera showed a pickup truck with five orange lights on the front of the cab driving away from the property, but did not show the driver or license plate number. The vehicle resembled an older two-tone red and silver pickup truck consistent with a 1980s Ford pickup truck (the truck). As the truck backed out of the driveway, it appeared to have items in the bed that were consistent with the appliances stolen from the home. A video from another camera also showed items in the bed that appeared to be appliances.

         Kiermeier spoke to residents of Magnolia Street about the burglaries. Based on his description of the truck, a resident said he saw a similar truck frequently parked at another home on Magnolia Street and provided a photo of the truck from his home surveillance system. Kiermeier went to the home the resident identified and spoke to its occupant, L.H., who said the truck was often parked there and belonged to her children's father. L.H. denied knowing about the recent burglaries on Magnolia Street and declined to give Kiermeier any information about him.

         While speaking to L.H., Kiermeier noticed she had a child who appeared to be approximately seven years old. He contacted the principal of a local elementary school and asked if she was familiar with L.H. The principal said L.H. had two children enrolled at the school. Kiermeier obtained parental contact information from the principal, which listed defendant as the father. Kiermeier conducted a motor vehicle search and discovered defendant had a red Ford pickup truck registered in his name.

         Kiermeier then went to Camden Iron & Metal, Inc. to determine whether defendant had scrapped any of the stolen items there. He obtained receipts for and photographs of items defendant had scrapped, which appeared to match the items stolen on August 18, 2013. He also obtained photographs of the truck, which showed the stolen items in the bed. He spoke to the victim, who positively identified the items shown in the photographs as his stolen property. Defendant was arrested the next day.

         On his motion to suppress, defendant argued he had a reasonable expectation of privacy in personally identifiable information (his name) contained in his children's school records because the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and its corresponding regulation, 34 C.F.R. § 99, and the New Jersey Pupil Records Act (NJPRA), N.J.S.A. 18A:36-19, and its corresponding regulations, N.J.A.C. 6A:32-7.1 to -7.8, guarantee parents the right to safeguard that information from improper disclosure.

         The court found an individual ordinarily surrenders a reasonable expectation of privacy in information revealed to a third party and that "a person's name could hardly be thought of as protected privacy information." The court also found the policy behind FERPA and the NJPRA is to protect the student's privacy, not the privacy of the parent's name, and any violation implicated the school, not the police. The court determined that a parent's name could be disclosed under FERPA as "directory information." The court concluded that "no privacy interest was violated so as to require a warrant as to the parent's name" and "[n]o information on the student was used as part of this investigation in any event." The court also held, sua sponte, that the inevitable discovery doctrine applied.

         On appeal, defendant raises the following contentions.

POINT I

A POLICE OFFICER'S WARRANTLESS, NONCONSENSUAL SEARCH OF CHILDREN'S SCHOOL RECORDS FOR PATERNITY INFORMATION PROTECTED FROM UNAUTHORIZED ACCESS BY THE PLAIN TEXT OF FEDERAL, STATE, AND LOCAL PRIVACY LAWS VIOLATED DEFENDANT'S REASONABLE EXPECTATION OF PRIVACY UNDER THE FEDERAL AND STATE CONSTITUTIONS [U.S. CONST., AMEND. IV; N.J. CONST., ART. I, ¶ 7].
A. Federal, State, And Local Privacy Laws Reflect A Broad Societal Consensus: [Defendant] Had A Reasonable Expectation Of Privacy In His Children's School Records And The Personally Identifying Information Therein, Including Paternity Information.
1. Federal Law Specifically Defines Paternity Information In School Records As "Personally Identifiable Information," Protected From Warrantless Disclosure Without Written Parental Consent.
2. While Federal Law Allows Local Authorities To Designate, By Public Notice, Categories Of "Personally Identifiable Information" That May Be Disclosed Without The Written Parental Consent Requirement ("Directory Information"), The State Offered No Proof That [The Children's Elementary School] Has Exempted Paternity Information In This Manner. If The State Had Looked, It Would Have Discovered That [The School's] Public Notice Actually Does Not Exempt Paternity Information From The Written Parental Consent Requirement.
3. Federal Law Prohibits Members Of The Public From Using A Mother's Name To Search School Records In Order To Learn The Names Of Her Children, And Any Paternity Information Associated With Those Children, Which Is Exactly What The Police Officer Did.
4. New Jersey State Law Did Not Permit The Officer's Warrantless, Nonconsensual Search. Federal Law Establishes A Privacy Floor Below Which State Law Cannot Sink.
5. Because The Plain Text of Federal, State, And Local Privacy Laws Clearly and Unambiguously Barred The Police Officer's Warrantless, Nonconsensual Search, The Court Had No Reason To Examine Statutory Purpose.
6. Although The Trial Court Had No Reason To Look Beyond The Clear And Unambiguous Plain Text Of Federal, State, And Local Privacy Laws, The Purpose Of These Laws Is Plainly To Protect Familial Privacy, Not Just The Privacy Of Children.
7. Leaving Aside FERPA's Federal, State, And Local Statutory Scheme Protecting A Right To Privacy In School Records, The New Jersey Supreme Court Has Also Found Constitutionally-Based Rights Protecting The Privacy Of Familial Associations And Consensual Adult Sexual Relationships.

         B. The Trial Court Erred By Not Applying The Exclusionary Rule.

1. [Defendant] Did Not Waive His Reasonable Expectation Of Privacy In His Children's School Records And The Personally Identifying Information Therein.
2. The Trial Court Erroneously Applied The Inevitable Discovery Doctrine Sua Sponte, Without Any Explanation As To Why Or How The Evidence Would Have Been Inevitably Discovered, After The State Failed To Raise It Or Call Any Witnesses To Support It.
3. Because Federal, State, And Local Privacy Laws Explicitly Required The Police To Obtain A Judicial Search Warrant, And The Police Did Not, Exclusion Of The Evidence Here Would Only Acknowledge The Social Choices Made By The Political Branches.

         Our Supreme Court has established the standard of review applicable to consideration of a trial judge's ruling on a motion to suppress:

We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" Deference to those findings is particularly appropriate when the trial court has the "opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo."

[State v. Watts, 223 N.J. 503, 516 (2015) (alteration in original) (quoting State v. Vargas, 213 N.J. 301, 327 (2013)).]

         Because this appeal involves the court's interpretation of the law, our review is de novo with no deference afforded to the court's legal conclusions. Ibid.

         II.

         We first address defendant's argument that the court erroneously applied the inevitable discovery doctrine. The inevitable discovery doctrine is an exception to the exclusionary rule. Nix v. Williams, 467 U.S. 431, 444 (1984). "If the State can show that 'the information ultimately or inevitably would have been discovered by lawful means ... the deterrence rationale [of the exclusionary rule] has so little basis that the evidence should be received."' State v. Maltese, 222 N.J. 525, 551-52 (2015) (alterations in original) (quoting Nix, 467 U.S. at 444).

         In order to invoke the doctrine, the State must show by clear and convincing evidence that:

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of such evidence by unlawful means.

[State v. Keaton, 222 N.J. 438, 451 (2015) (quoting State v. Sugar, 100 N.J. 214, 238 (1985) (Sugar II)). 1

         The State must demonstrate that "had the illegality not occurred, it would have pursued established investigatory procedures that would have inevitably resulted in the discovery of the controverted evidence, wholly apart from its unlawful acquisition." Sugar II, 100 N.J. at 240. "[T]he central question to be addressed in invoking the 'inevitable discovery' rule 'is whether that very item of evidence would inevitably have been discovered, not merely whether evidence roughly comparable would have been so discovered.'" State v. Worthy, 141 N.J. 368, 390 (1995) (citation omitted). However, "the State need not demonstrate the exact circumstances of the evidence's discovery .... It need only present facts sufficient to persuade the court, by a clear and convincing standard, that the [evidence] would be discovered." Maltese, 222 N.J. at 552 (alterations in original) (quoting State v. Sugar, 108 N.J. 151, 158 (1987) (Sugar III)).

         Here, the State did not raise the inevitable discovery doctrine and presented no evidence, let alone clear and convincing evidence, satisfying the three requirements noted in Keaton. Accordingly, the court erred in speculating that the police would have inevitably discovered ...


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