September 14, 2017
appeal from Superior Court of New Jersey, Law Division,
Gloucester County, Indictment No. 13-12-1208.
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).
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).
Judges Simonelli, Haas and Rothstadt.
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).
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.
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.
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
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.
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.
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.
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.
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.
appeal, defendant raises the following contentions.
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
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
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
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
[State v. Watts, 223 N.J. 503, 516 (2015)
(alteration in original) (quoting State v. Vargas,
213 N.J. 301, 327 (2013)).]
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.
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).
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
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)).
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